Opinion
B231171
01-19-2012
EDNA SANTOS, Plaintiff and Appellant, v. SCOTT VILLA APARTMENTS, L.P., et al., Defendants and Respondents.
Grassini & Wrinkle and Roland Wrinkle for Plaintiff and Appellant. Haight Brown & Bonesteel, William G. Baumgaertner and Thomas N. Charchut for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. BC355923
APPEAL from a judgment of the Superior Court of Los Angeles County. Amy D. Hogue, Judge. Reversed.
Grassini & Wrinkle and Roland Wrinkle for Plaintiff and Appellant.
Haight Brown & Bonesteel, William G. Baumgaertner and Thomas N. Charchut for Defendants and Respondents.
This is the second time this case has come before us. In 2006, Edna Santos filed a wrongful death action against Scott Villa Apartments, L.P. and Francis Property Management, Inc. (collectively Scott Villa or respondents), after the murder of her daughter, Sharon Santos. Appellant alleged Scott Villa's maintenance worker killed Santos and respondents' negligence as his employer rendered them liable for Santos's death. A jury returned a $12 million verdict for appellant. The trial court denied respondents' motion for a judgment notwithstanding the verdict (JNOV), but granted their motion for a new trial. In the prior appeal (Santos v. Scott Villa Apartments, L.P. (Jan. 28, 2010, B207774) [nonpub. opn.].), we affirmed the trial court's orders. Following the remand of the case to the trial court, Scott Villa filed a motion for summary judgment. The trial court concluded significant portions of appellant's evidence were inadmissible, and granted summary judgment. Appellant challenges the ruling. Although we find the trial court did not abuse its discretion in sustaining Scott Villa's evidentiary objections except as to a minor issue, we conclude appellant still raised a triable issue of fact on causation. We reverse the trial court judgment.
We refer to appellant Edna Santos as "appellant," and Sharon Santos as "Santos."
FACTUAL AND PROCEDURAL BACKGROUND
The proceedings below and the parties' arguments on appeal almost entirely concern the evidence presented at the first trial. Thus, our summary of the background facts is taken largely from our unpublished opinion in the first appeal.
The following facts were and continue to be undisputed. Sharon Santos was a tenant at the Scott Villa apartment complex. On August 19, 2004, Santos's employer called her sister because Santos had not been to work in two days and had not called in. Santos's sister called the apartment complex and asked the manager, Sue Peterson, to check Santos's apartment. Peterson checked the apartment and reported that Santos's purse and cell phone were in the apartment, but Santos was not. Santos was reported missing. Around two weeks later, police found Santos's body in the trunk of her car, which had been abandoned in the Chinatown neighborhood of Los Angeles.
A maintenance worker at the complex, Eriberto Rodriguez, became a suspect in the Burbank Police Department's investigation of Santos's murder. Rodriguez was a convicted felon and registered sex offender before respondents hired him. However, respondents did not perform a criminal background check on Rodriguez before hiring him and did not learn of his criminal background until after Santos's death. After Santos's death, it was discovered that Rodriguez had burglarized a number of apartments in the Scott Villa complex. He had also sexually assaulted a housekeeper who cleaned apartments in the complex. In March 2006, Rodriguez pled no contest to several counts of residential burglary, sexual battery, false imprisonment, and assault with intent to commit rape, sodomy, and oral copulation, among other charges. He was sentenced to 12 years in prison. Rodriguez has not been charged in connection with Santos's murder.
In 2006, appellant filed a wrongful death action against respondents, asserting causes of action for battery, negligence, negligent hiring, and negligent entrustment. Trial began in early 2008. We briefly summarize the evidence appellant offered at trial.
In early to mid-June 2004, around two months before she disappeared, Santos told a friend that a ring was missing from her apartment. The ring was eventually discovered in Rodriguez's possession, along with items he had stolen from other tenants in the apartment complex. Around one week before Santos disappeared, one of her neighbors saw her speaking with Rodriguez. Santos was inside of her apartment, and Rodriguez stood in the hallway.
On or around August 18, 2004, Rosario Chavez, a glazier, was called to do a job for the Scott Villa complex. At the complex, Rodriguez accompanied Chavez to the unit that needed work. When they passed Santos's apartment, Rodriguez said "there was some fine bitch that lived in [the] apartment," and "he wouldn't mind doing her." Rodriguez had spoken in a similar fashion about other women at the apartment complex. Around two days later, Chavez and a coworker returned to the apartment complex to install glass. Rodriguez pointed to Santos's apartment and said: "The lady that lives here is dead." Chavez's coworker asked Rodriguez, in jest, "Why did you do it?" Rodriguez began to fidget and responded: "[T]hat is nothing to fuck around about. That's some serious shit." He turned and walked away, then urged the two men to hurry with their tasks. Although Rodriguez commented that Santos was dead, her body was not found until around two weeks after she was reported missing. Chavez also testified that Rodriguez wore a work uniform consisting of blue pants and a blue and white striped shirt.
Jose Sanchez lived in Chinatown. One day in August 2004, he was eating lunch at his kitchen table when he saw someone park a car that was later identified as Santos's car. A man got out of the car, turned and went to the trunk, and looked up and down for around four seconds. He then walked away towards Bunker Hill, but stopped at the corner and changed directions. The man appeared to be lost. He was wearing either dark blue or black pants and a white striped shirt, and looked well-dressed, like an office worker. Sanchez was 90 percent sure the man was Latino.
In deposition testimony, Rodriguez admitted he was a registered sex offender.
Rodriguez's Sexual Crimes
There was evidence that Rodriguez sexually assaulted two women: Nivia Molina and Petra Sandoval. Molina and Rodriguez were coworkers at a market in 1994. Rodriguez repeatedly asked Molina to go out with him and made sexual or romantic advances. Molina testified that in May 1994, Rodriguez lured her to his apartment, then bound and raped her. Rodriguez eventually pled guilty to sexual battery with restraint based on the incident. Sandoval cleaned apartments for several tenants at the Scott Villa complex. Rodriguez gave her rides and invited her to a movie, but she declined the invitation. Rodriguez later sexually assaulted Sandoval at the apartment complex. Sandoval subsequently told the Scott Villa apartment manager, Peterson, that Rodriguez was "bothering" her. Peterson told her she was at fault. According to Peterson, she told Rodriguez not to go into apartments where Sandoval was cleaning, and she put a memo about the conversation in Rodriguez's personnel file. In March 2006, Rodriguez pled no contest to sexual battery, false imprisonment, and assault with intent to commit rape, sodomy, and oral copulation, arising out of his attack on Sandoval.
Appellant's Expert Testimony
Bumcrot
Appellant offered the testimony of Michael Bumcrot, a retired detective with the Los Angeles County Sheriff Department's homicide bureau. Bumcrot had experience handling rape and murder cases. Because the Burbank Police Department was conducting an ongoing investigation of Santos's murder, police files and evidence were not available to Bumcrot for review. Instead, Bumcrot reviewed search warrants the police served in connection with the case, reports of the murder, deposition testimony, and Rodriguez's criminal history. Bumcrot read police reports and testimony regarding the Molina and Sandoval incidents. He also spoke with Sean Kelley, the homicide detective from the Burbank Police Department in charge of the investigation of Santos's murder. Bumcrot testified about the contents of search warrants issued in the case to search areas accessible to Rodriguez at the apartment complex, and the purpose of a search warrant. He testified he was aware that Santos's body was found naked, and that one of the search warrants sought women's clothing, including underwear, in sizes worn by Santos. On cross-examination, Bumcrot indicated that when shown a six-pack photographic lineup, Sanchez picked out Rodriguez and another man, and indicated the driver of the car could have been either man.
Bumcrot opined that Rodriguez was responsible for Santos's death. He identified Rodriguez as a sexual predator, based on Rodriguez's assaults of Molina and Sandoval, and the testimony of one of Rodriguez's former coworkers. Bumcrot was aware Rodriguez was a registered sex offender. He concluded there were significant similarities between the Molina, Sandoval, and Santos cases:
The fellow employee testified in a deposition that Rodriguez often flirted with female staff, including by hugging one woman from behind and thrusting his pelvis against her. The fellow employee also reported he had seen Rodriguez in the back seat of his car with female minors.
"I found that all three victims, Molina, Sandoval and Santos, were slight women. While Molina and Sandoval were sexually assaulted, Santos was found nude which would lead one to believe she was sexually assaulted. And I read [appellant's] deposition where Detective Kelley said [Santos] had been raped and the bone in her neck had been broken. Molina and Sandoval both said they were choked by Mr. Rodriguez and the cause of death of Ms. Santos was strangulation. [¶] Molina was restrained by handcuffs and duct tape. The Santos search warrant lists duct tape, masking tape and twine which leads one to believe that Santos was restrained. Sandoval was attacked by Mr. Rodriguez who entered the location with a key. Ms. Santos's ring was recovered in the suspect's residence suggesting that he had a key to her apartment also. She was, and speaking of Ms. Sandoval, she was restrained in a small room while the other two were restrained by duct tape or whatever. Both Ms. Molina and Ms. Sandoval were foot swept to the floor."Bumcrot additionally testified that, given the 75 percent recidivism rate for sexual predators, it was predictable that Rodriguez would commit another sexual offense after assaulting Molina, and "after Sandoval it was ever higher. It seemed that he always used the work place [as] a place for meeting these victims."
Although appellant testified at trial, she did not testify about any statements Detective Kelley made to her.
Bumcrot opined the ring Rodriguez stole from Santos was a "trophy," even though he stole it before Santos disappeared. According to Bumcrot, "if it were not a trophy and he had not been involved, [Bumcrot] would think he would have gotten rid of the ring." Bumcrot's review of the evidence also revealed that the first personal reference listed on Rodriguez's employment application with Scott Villa lived only one block away from where police eventually found Santos's body. Bumcrot further determined Santos's car was abandoned approximately 11 miles from the Scott Villa apartment complex. There was a bus stop at a nearby corner; the route of the bus servicing the stop included the Scott Villa apartment complex.
Although Bumcrot indicated the Burbank police sent evidence related to Santos's murder to a crime lab for analysis, he admitted he was unaware of any forensic or DNA evidence linking Rodriguez to the crime. Bumcrot also testified about his experience with the Los Angeles County Sheriff's Department lab, and delays the lab experienced in completing lab work on evidence submitted. He additionally testified that in his professional experience, he had learned that sometimes rape can lead to a murder in that the rape "gets so rough that the victim is killed . . . ." Bumcrot was also allowed to testify that Detective Kelley told him there was no doubt in his mind Rodriguez was involved in Santos's murder, and Rodriguez was the only suspect.
Albrecht
Appellant also offered the expert testimony of Steven Albrecht, a former police officer and high-risk human resources specialist. Albrecht opined that Scott Villa failed to adequately protect its tenants and employees by neglecting to conduct a criminal background check on Rodriguez, by not having a stricter policy to control access to the apartment unit keys or a master key, and by failing to protect employees or vendors such as Sandoval. Albrecht further testified that, based on his experience in criminal profiling, he saw a connection between Molina, Sandoval, and Santos, based on their size, skin color, age, and connection to Rodriguez's workplace.
Rodriguez had at least some access to apartment unit keys. According to Peterson, Rodriguez had access to keys to an individual apartment when there was work to be done on that unit, but otherwise the keys were locked away. However, she also testified she would not know if he ever took the keys when she was not there. For one full day twice per year, Rodriguez had access to a master key so that the air conditioning units and smoke alarms in each unit could be checked.
Jury Verdict and Postverdict Motions
The jury returned a $12 million verdict in appellant's favor. Respondents filed a motion for JNOV and a motion for new trial. The trial court denied the JNOV motion, but granted the motion for new trial.
Prior Appeals
Both sides appealed. Appellant challenged the court's order granting the motion for new trial. Scott Villa challenged the court's denial of the JNOV motion. This court affirmed both orders and remanded the case to the trial court.
Following the remand, Scott Villa served appellant with a supplemental interrogatory to determine whether she had any additional information responsive to previous interrogatories, or if any previous response was incorrect. Appellant responded by incorporating by reference the testimony from the first trial. In response to a form interrogatory requiring explanation of responses to requests for admissions, appellant referred exclusively to the testimony from the first trial. Appellant admitted she did not have DNA or other "physical trace or biological evidence" linking Rodriguez to Santos's murder.
Scott Villa also served the Burbank Police Department with a deposition subpoena and demand for production of documents. The police department did not make a witness available to be deposed and objected to the production request. Scott Villa moved to compel. The police department opposed the motion and submitted a declaration from Detective Kelley. Kelley declared the Santos murder investigation was ongoing and he did not know when it would be completed. He further stated: "I have expressed my belief that the murder of Sharon Santos was committed by Eriberto Rodriguez to many people over the years. However, I have never disclosed important details or important facts related to my investigation (which in this declaration I mean to include the obvious categories of evidence, including forensic testing results, witness statements, etc., and those categories of evidence which I cannot disclose) to anyone outside the Burbank Police Department, with the exception of other law enforcement agencies, and forensic lab experts involved in the criminal investigation." The trial court ordered the police department to produce records relating to the investigation for an in camera review. The court subsequently found the investigation was ongoing and denied the motion to compel.
Scott Villa moved for summary judgment. In the motion, Scott Villa argued appellant had no admissible evidence raising a triable issue of fact on causation—namely that Rodriguez was connected to Santos's murder. Scott Villa contended the testimony of Molina and Sandoval was inadmissible under either Evidence Code section 1101, subdivision (a), or section 352. Scott Villa further argued the testimony of Bumcrot and Albrecht was inadmissible because it consisted of impermissible legal conclusions and lacked foundation. Scott Villa asserted Bumcrot's testimony in part consisted of inadmissible hearsay. Without appellant's experts' testimony and the evidence of Rodriguez's prior sex crimes, Scott Villa contended the remaining "bits and pieces" of evidence established neither how Santos's murder took place nor that Rodriguez was involved.
Appellant opposed the motion. She contended the appellate decision affirming the trial court's denial of Scott Villa's motion for a JNOV was "law of the case" and mandated that the trial court deny the summary judgment motion. Appellant further asserted the evidence admitted in the first trial was relevant and admissible.
In a written ruling, the trial court found Scott Villa made a prima facie case for summary judgment on the issue of causation. The court reviewed the entire trial record "to identify any and all admissible evidence that Rodriguez committed the murder." The court concluded Bumcrot's testimony about evidence uncovered in the murder investigation was inadmissible hearsay. The court also concluded Bumcrot's opinion that Rodriguez murdered Santos was inadmissible because it was unsupported by the record and usurped the jury's role on an ultimate issue. The court determined that because Bumcrot's testimony "is not supported by independently admissible evidence, and goes to the ultimate fact before the jury, its prejudicial value outweighs its probative value." The court further found the Molina and Sandoval testimony inadmissible as improper prior bad acts evidence, and additionally that the testimony was properly excluded under Evidence Code section 352. The court found Albrecht's testimony was irrelevant unless he could opine sex offenders have a proclivity to commit murder, and that his opinions lacked foundation because the evidence contradicted his conclusions.
The trial court explained appellant was left with only eight items of relevant and admissible evidence to establish Rodriguez killed Santos:
"(1) Santos was seen chatting with Rodriguez at the front door of her apartment approximately one week before she disappeared; (2) a ring that Santos wore every day disappeared a couple of weeks before she went missing and was found in Rodriguez'[s] apartment after her body was discovered; (3) on August 18, 2004, Rodriguez admitted to Rosario Chavez that he regarded Sharon Santos as 'a fine bitch' and wanted to 'do' her; (4) on various prior occasions, Rodriguez had access to a master key and the key to Santos'[s] apartment; (5) after it was known that Santos had gone missing but shortly before her body was found, Rodriguez remarked that Santos was 'dead' and he appeared nervous when a co-worker quipped, 'Why did you do it?'[;] (6) the man who parked the car in which Santos'[s] body was discovered generally fit Rodriguez'[s] description: short Hispanic male wearing dark pants and a long sleeve striped dress shirt (similar to Rodriguez'[s] maintenance uniform); (7) the witness who saw the man parking the car can eliminate, as possible suspects, four photographs from a six-pack photographic 'line-up' but cannot eliminate Rodriguez or the sixth male; ([8]) Santos'[s] car was abandoned conveniently close to a bus line that could have carried Rodriguez home, and close to an address Rodriguez gave for a personal reference when he filled out his employment application."The court concluded this evidence was insufficient to raise a triable issue of material fact that Rodriguez murdered Santos. However, the court found that since there were percipient witnesses from the Burbank Police Department with knowledge of the Santos murder investigation, Scott Villa had not shown appellant could not reasonably obtain evidence to establish causation. On that narrow ground, the trial court denied the motion for summary judgment. Appellant subsequently stipulated she would not be able to offer testimony from a Burbank Police Department witness at the second trial. The court then reconsidered its ruling and granted summary judgment to Scott Villa. This appeal followed.
DISCUSSION
I. Standard of Review
"Since this appeal follows 'the granting of summary judgment, the evidence must be examined according to summary judgment standards. Examining evidence in light of summary judgment standards is far different from applying the substantial evidence test that often governs on appeal. In the judgment after trial context the evidence need only be sufficient to support the judgment for the winning party, even though the evidence might, in another reasonable mind, also have supported a judgment for the losing party. In the summary judgment context, by contrast, the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment. Thus even though it may appear that a trial court took a "reasonable" view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.' [Citation.]
"The standards applicable to appellate court review of a motion for summary judgment 'are well established. (See Code Civ. Proc., § 437c; Aguilar [v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar)].)We determine de novo whether a triable issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. [Citation.] [¶] In reviewing a motion for summary judgment, we must consider all of the evidence and all of the inferences reasonably drawn therefrom, and we must view such evidence in the light most favorable to the opposing party. [Citation.] . . . [¶] A triable issue of fact exists when the evidence reasonably permits the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion. [Citation.]' [Citation.]
"This appeal 'requires a disciplined analysis of what inferences may be drawn from the admissible evidence. A material issue of fact may not be resolved based on inferences, if contradicted by other inferences or evidence. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th at p. 856.) "[T]he court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact," but must determine the question of law of "what any evidence or inference could show or imply to a reasonable trier of fact." [Citation.] Where the evidence and inferences would allow a reasonable trier of fact to find the underlying fact in favor of a plaintiff in accordance with the applicable standard of proof, then a defendant's motion for summary judgment must be denied. [Citation.]' [Citation.]" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 876-877 (Faust).)
II. The Trial Court's Evidentiary Rulings
Central to the disposition of the case were the trial court's conclusions that the testimony of Molina, Sandoval, and Bumcrot was inadmissible. We begin our review with these rulings. As an initial matter, we reject appellant's argument that law of the case determines the outcome of this appeal. In the first set of appeals, we had no opportunity to review whether the trial court improperly admitted the Molina and Sandoval testimony, or the testimony of appellant's experts. In ruling on the challenge to the trial court's denial of a JNOV, we acknowledged that even if some evidence was improperly admitted (referring specifically to portions of the Bumcrot testimony), under the standard of review for a JNOV ruling, we would still consider the evidence and evaluate whether it was sufficient to allow the verdict to stand. In contrast, in this appeal we are called upon to review the trial court's evidentiary rulings in connection with summary judgment, and the court's order made after certain evidence was excluded. With this in mind, we turn to the objections and evidentiary rulings at issue in this appeal.
Although the trial court determined the Albrecht testimony was also inadmissible, appellant does not challenge or even mention this ruling on appeal. We therefore do not address the court's rulings on the Albrecht testimony. (Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1279, fn. 1; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
When reviewing a trial court order granting summary judgment, "[w]e consider ' "all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence." ' [Citation.]" (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 507.) Respondents included evidentiary objections in their separate statement of undisputed material facts, and in their response to appellant's separate statement of material facts. Their summary judgment motion reiterated some of these objections. While the trial court did not appear to rule on an objection by objection basis, it sustained the objections relating to the testimony of Molina, Sandoval and Bumcrot. Appellant challenges these rulings on appeal. The weight of authority indicates abuse of discretion is the appropriate standard when the trial court has ruled on the evidentiary objections. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
We do not undertake a wide ranging review of the admissibility of testimony from the first trial. To the extent the trial court considered the admissibility of evidence that was not the subject of a specific evidentiary objection, we do not express an opinion on such rulings. Instead, we limit our review to Scott Villa's objections that the trial court sustained in connection with summary judgment, and which appellant challenges on appeal. We also note that in Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid), the California Supreme Court held when the trial court has not ruled on specific objections to evidence offered in connection with summary judgment pleadings, the objections are presumed overruled. (Id. at p. 534.) Here, the trial court did not address all of Scott Villa's evidentiary objections asserted in connection with the summary judgment motion. To the extent the trial court's order did not resolve these objections, we presume them overruled.
In Reid, supra, 50 Cal.4th at page 535, our Supreme Court indicated de novo review is appropriate when the trial court has failed entirely to rule on evidentiary objections in connection with a summary judgment motion. The court did "not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo." (Ibid.)
A. Evidence of Rodriguez's Prior Sex Crimes
The trial court found evidence of Rodriguez's sexual assaults on Molina and Sandoval was inadmissible under Evidence Code section 1101, subdivision (a) and section 352. Under section 1101, evidence of a person's prior acts is inadmissible to prove his conduct on a specific occasion (§ 1101, subd. (a)), but may be admitted to prove some other fact such as motive, opportunity, intent, preparation, plan, knowledge, or identity. (§ 1101, subd. (b).) To be admissible under section 1101, subdivision (b), prior acts must be in some way similar to the alleged act at issue. In Alcala v. Superior Court (2008) 43 Cal.4th 1205, our high court explained, in the context of cross-admissibility in a criminal case, "there exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose [citation] for which introduction of the evidence is sought. . . . 'The least degree of similarity. . . is required in order to prove intent. . . . In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' [Citations.]" [Citation.]' " (Alcala, at pp. 1222-1223, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
In Ewoldt, the court further explained that "[t]he greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 403.) When prior acts of misconduct are offered to prove the existence of a common design or plan, the degree of similarity required lies between that required for proof of identity and that for proof of intent. "[E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (Ibid.)
In general, the principles applied in criminal cases regarding uncharged conduct or prior bad acts are equally applicable to civil cases. (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 165, fn. 11.) We note however that Evidence Code section 1108, by its own terms, applies only to criminal cases. (Evid. Code, § 1108, subd. (a) ["In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."]; 1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 101, p. 448 [while the general rule of exclusion of other offenses has been applied where evidence of a prior act is offered in a civil case, Evidence Code section 1108 is an exception].) Appellant cites to no legal authority, and we are aware of none, that indicates Evidence Code section 1108 applies in a civil matter.
Prior acts evidence may be admitted to prove something other than identity, even if the identity of the perpetrator is in dispute. In People v. Foster (2010) 50 Cal.4th 1301 (Foster), for example, our high court explained " 'a fact finder properly may consider admissible "other crimes" evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes [citation], and further (2) the threshold standard articulated in Ewoldt can be satisfied— that is, "the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored" the requisite intent. [Citation.] There is no requirement that it must be conceded, or a court must be able to assume, that the defendant was the perpetrator in both sets of offenses.' [Citation.]" (Foster, p. 1332.)
But here, the lack of evidence about Santos's disappearance and death makes it difficult to find factual similarities between her murder and the attacks on Molina and Sandoval. (People v. McDermott (2002) 28 Cal.4th 946, 999 [other crimes evidence may be admitted when relevant to establish a motive for charged offense or common plan or design, but only if the offenses share common features]; People v. Walker (2006) 139 Cal.App.4th 782, 804-805.) There was admissible evidence that Santos disappeared, was strangled, and her body was found in the trunk of her car. Although Rodriguez lured or coerced Molina and Sandoval to go to a location where he assaulted them, there was no evidence about the circumstances of Santos's disappearance. While Bumcrot concluded Rodriguez choked Molina and Sandoval, this was based on his review of evidence not included in the record, and the two women did not testify at trial that Rodriguez choked them. Even if admitted, the jury could consider the Bumcrot choking testimony only as a basis for his opinion, and not as an independently proven fact. Appellant did not offer other evidence in opposition to summary judgment showing Rodriguez choked or strangled Molina or Sandoval. Rodriguez did not kill either Molina or Sandoval. Thus, it was not an abuse of discretion for the trial court to conclude Santos's death by strangulation does not fit into a pattern that was established by admissible evidence.
Likewise, there was evidence Rodriguez had talked to Santos once and he expressed a sexual interest in her to a third party. Santos was also a woman Rodriguez met through his place of employment. But there is no evidence Rodriguez attempted to befriend or date Santos as he did with Molina and Sandoval. Unlike Molina and Sandoval, Santos was not Rodriguez's coworker or akin to a coworker. Rodriguez raped Molina, but not Sandoval. The only evidence that Santos was raped was Bumcrot's opinion to that effect, an opinion the trial court found inadmissible. While Albrecht indicated Molina and Sandoval were both around five feet five or five feet six inches tall, Bumcrot testified Santos was under five feet tall. According to Albrecht, Molina was in her 30's when Rodriguez attacked her, but Sandoval was in her early 50's; Santos was around 31 years old at the time of her death.
For detailed evidence of Rodriguez's assaults on Molina and Sandoval to be considered as evidence of his identity as Santos's killer, or of his intent, motive, or a plan in connection with Santos's murder, it was necessary for the trial court to conclude there were some factual similarities between the prior acts and the act at issue. While there were some similarities between Rodriguez's attacks on Molina and Sandoval and Santos's murder, the trial court could reasonably conclude these similarities were insufficient to satisfy the threshold standard explained in Ewoldt. Moreover, even if the similarities that existed were enough to render the prior acts evidence admissible, the trial court could still reasonably find the evidence, particularly in the form of the graphic, detailed testimony presented in the first trial, was substantially more prejudicial than probative. The trial court did not abuse its discretion by finding the Molina and Sandoval testimony detailing Rodriguez's sexual assaults inadmissible to prove Rodriguez's connection to Santos's murder, or his intent, motive, or plan. (Foster, supra, 50 Cal.4th at p. 1332.)
Appellant also argues the Sandoval testimony was relevant to prove Scott Villa was on notice that Rodriguez was a danger to others. If the evidence were admitted for this limited purpose, it would not properly be considered to indicate Rodriguez was connected to Santos's murder in the first instance. Thus, the issue does not affect our determination of whether appellant raised a triable issue of fact on causation. We do not consider whether some form of the evidence of Rodriguez's sexual assault of Sandoval was admissible for the limited purpose of establishing notice.
B. Bumcrot Testimony
Scott Villa objected to the Bumcrot opinion that Rodriguez was responsible for Santos's death on the grounds that it was improper, speculative, lacked foundation, and usurped the function of the jury. Scott Villa objected to Bumcrot's characterization of himself as an expert in investigation and determination of guilt. Scott Villa also made hearsay and foundation objections to Bumcrot's testimony that he read appellant's deposition in which she reported Detective Kelley told her Santos was raped and strangled.
The trial court found Bumcrot's testimony "about evidence uncovered in the murder investigation" was inadmissible hearsay. The court specifically mentioned Bumcrot testimony, purportedly based on a conversation with Detective Kelley, that "Santos was murdered, that Rodriguez is the sole suspect in the case, that [Santos's] body was found nude in the trunk of her car with a broken neck bone, and that the police had recovered physical evidence and sent it to a laboratory." The trial court further found Bumcrot's opinion that Rodriguez killed Santos was inadmissible "not only because it rested on assumptions not supported in the evidentiary record but also because it went to the ultimate fact, effectively usurping the province of the jury. . . . Where [expert] testimony [regarding ultimate facts] is not supported by independently admissible evidence, and goes to the ultimate fact before the jury, its prejudicial value outweighs its probative value." (Citations omitted.)
We conclude the trial court did not abuse its discretion in finding inadmissible Bumcrot's opinion that Rodriguez killed Santos. An expert's opinion may embrace an ultimate issue in the case. (Evid. Code, § 805.) However, a trial court may exclude an expert's opinion if it invades the province of the jury to decide a case and does nothing more than inform the jury how the case should be decided. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.) One of the fundamental issues in this case is whether the evidence supports the conclusion that Rodriguez murdered Santos. Bumcrot may have expertise relevant to that question that could be helpful to the jury in answering the question. But the trial court could reasonably determine that Bumcrot's opinion that Rodriguez murdered Santos would simply inform the jury how to decide a pivotal issue in the case, without offering anything of value. Certainly, lay juries are capable of determining whether evidence supports a conclusion that a person committed a murder, without expert testimony directly telling them that the person indeed killed the victim. The trial court did not exceed the bounds of reason in concluding Bumcrot's opinion that Rodriguez murdered Santos usurped the function of the jury and was inadmissible. (Id. at pp. 972, 974; Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457, 478.)
Scott Villa also objected to Bumcrot's testimony, which relayed double hearsay statements from appellant and Detective Kelley that Santos was raped and strangled. We construe the trial court's finding excluding Bumcrot testimony about "evidence uncovered in the murder investigation" as sustaining this objection. Under Evidence Code section 801, subdivision (b), an expert's testimony in the form of an opinion must be "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." " ' "[A]n expert may generally base his opinion on any 'matter' known to him, including hearsay not otherwise admissible, which may 'reasonably . . . be relied upon' for that purpose." ' . . . [¶] . . . [¶] . . . An expert may rely on hearsay to form an opinion, but the expert should not bring before the trier of fact incompetent hearsay evidence under the guise of reasons for his opinion." (North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 294, citations omitted.)
To the extent the Bumcrot testimony simply repeated hearsay statements, the court would properly find it inadmissible, unless the statements were subject to some exception to the hearsay rule. However, in the first trial, Bumcrot opined that Santos's murder was significantly similar to Rodriguez's prior sexual assaults, in part because of Bumcrot's understanding Santos was raped and strangled. Since an expert may base an opinion on inadmissible hearsay if it constitutes evidence that may reasonably be relied upon by an expert, we consider whether the basis for Bumcrot's opinion met that threshold.
That Santos was strangled was evidenced by her death certificate. Even if this were not admissible under an exception to the hearsay rule, Bumcrot could reasonably rely upon such information to form an opinion. The trial court erred to the extent it found that portion of the Bumcrot testimony inadmissible. That Santos was raped, on the other hand, was information Bumcrot apparently learned only through a series of hearsay statements—appellant's testimony in a deposition, in which she relayed what Detective Kelley told her. We cannot find the trial court abused its discretion in excluding Bumcrot's repetition of this hearsay. After the first trial, Detective Kelley submitted a declaration to the trial court in which he declared he had never shared any "important details" or "important facts" with anyone outside of the Burbank Police Department. Further, appellant offered no other source for the information that Santos was raped. The trial court could conclude the double hearsay upon which Bumcrot relied was unreliable hearsay, and Bumcrot's testimony repeating the hearsay statement was inadmissible because it simply placed incompetent hearsay in the record. (People v. Pollock (2004) 32 Cal.4th 1153, 1172 [trial court may exclude from the expert's testimony hearsay whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value].)
Scott Villa did not state specific objections to other portions or aspects of Bumcrot's testimony relevant to causation. We limit our review to the sustained objections.
III. Appellant Raised a Triable Issue of Material Fact
Although we find no abuse of discretion in the trial court's rulings sustaining Scott Villa's objections to the Molina and Sandoval testimony, Bumcrot's opinion that Rodriguez murdered Santos, and at least some of Bumcrot's testimony that brought in hearsay statements, we still conclude appellant's evidence raised a triable issue of material fact on causation.
There was evidence that Rodriguez worked in the Scott Villa apartment complex, where Santos was a tenant. He was seen talking with Santos around one week before she disappeared. He expressed a crude sexual interest in Santos shortly before she was reported missing. He had at least partial access to keys to the apartments in the complex. He burglarized Santos's apartment. After Santos was reported missing, but well before her body was found, Rodriguez told others Santos was dead, then reacted nervously when someone jokingly asked if he had killed her. A witness to the abandonment of Santos's car described a man who fit Rodriguez's general description and was wearing clothes similar to Rodriguez's work uniform. Santos's car was abandoned near a bus line that passed by the Scott Villa complex. Rodriguez was at least one suspect in the law enforcement homicide investigation.
Scott Villa objected to this testimony as impermissible hearsay, and repeats the argument in its appellate briefing. The trial court apparently overruled the objection. We agree that the statement is admissible. Appellant did not offer Rodriguez's statement for its truth, or, in other words, to prove that Santos was actually dead. Instead, the statement was offered to show Rodriguez's state of mind and knowledge. (Younger v. State Bar (1974) 12 Cal.3d 274, 286 [declarant's statement that attorney was in his office was not offered to prove the truth of the statement, but to show the declarant knew the attorney was in his office, suggesting the declarant acted as attorney's agent].)
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To defeat the summary judgment motion, appellant was required only to offer evidence that would allow a reasonable trier of fact to conclude it was more likely than not that Rodriguez killed Santos. On summary judgment, appellant's evidence was to be liberally construed, and all reasonable inferences drawn in her favor. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839 (Binder).) In Aguilar, the California Supreme Court explained that although the court "may not weigh the plaintiff's evidence or inferences against the [defendant's] as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact. . . . In so doing, it does not decide on any finding of its own, but simply decides what finding such a trier of fact could make for itself." (Aguilar, supra, 25 Cal.4th at p. 856.) Moreover, even if it appears that the trial court took a reasonable view of the evidence, we will not affirm an order granting summary judgment unless " 'a contrary view would be unreasonable as a matter of law in the circumstances presented.' [Citation.]" (Faust, supra, 150 Cal.App.4th at p. 877.) While the remaining evidence does not leave appellant with a strong case, we believe there remains sufficient evidence to meet this low threshold. Even without hearsay evidence from the murder investigation, the details of Rodriguez's history of sexual assaults, or an expert opinion that Rodriguez murdered Santos, the remaining evidence could allow a jury to reasonably conclude it was more likely than not that Rodriguez killed Santos.
Scott Villa attempts to undermine the above evidence by suggesting other possible inferences that could be drawn from each piece of evidence and would suggest Rodriguez was not necessarily Santos's killer. For example, Scott Villa argues Rodriguez's statement that Santos was dead "merely reflected the opinion of someone who had a feeling that something bad had happened." That is one possible inference, but a reasonable fact finder could also draw an inference from the statement that inculpated Rodriguez. The court ruling on a summary judgment motion does not weigh competing inferences, but must determine what any inference could show or imply to a reasonable trier of fact. "Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial." (Binder, supra, 75 Cal.App.4th at p. 839.) Appellant adduced evidence and inferences sufficient to raise a triable issue of material fact on causation in this case.
DISPOSITION
The trial court judgment is reversed. Appellant is to recover her costs on appeal.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J.