Supreme Court of California Justia
Docket No. S116358

Wiener v. Southcoast Childcare Centers

Filed 5/6/04

IN THE SUPREME COURT OF CALIFORNIA

AARON WIENER et al.,
Plaintiffs
and
Appellants,
S116358
v.
) Ct.App.
4/3
G028814
SOUTHCOAST CHILDCARE CENTERS, )
INC., et al.,
San
Diego
County
Defendants and Respondents. )
Super. Ct. Nos. 00CC01386,
00CC02595 & 00CC03365

We granted review in this case to determine whether a child care center and
its property owner should be liable in tort for a third party’s intentional criminal
act against the center’s children when there had been no reported prior similar
criminal acts or indeed any similar activity on or near the child care premises. As
will appear, we conclude that under Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 678 (Ann M.), and its progeny, the center and property
owner should not be liable because the criminal act involved here was
unforeseeable.
STANDARD OF REVIEW
Because plaintiffs appealed from the trial court’s order granting defendants
summary judgment, we independently examine the record in order to determine
whether triable issues of fact exist to reinstate the action. (Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) As we stated in Sharon P. v.
1


Arman Ltd. (1999) 21 Cal.4th 1181 (Sharon P.), involving a negligence claim
based on a criminal act and resolved on summary judgment, “To prevail on [an]
action in negligence, plaintiff[s] must show that defendants owed [them] a legal
duty, that they breached the duty, and that the breach was a proximate or legal
cause of [their] injuries.” (Id. at p. 1188; Code Civ. Proc., § 437c, subd. (o)(2).)
We have recently observed that the amendments to Code of Civil Procedure
section 437c modified the Sharon P. rule to place the initial burden on the
defendant moving for summary judgment and shift it to the plaintiff upon a
showing that the plaintiff cannot establish one or more elements of the action.
(Saelzler, supra, 25 Cal.4th at pp. 767-768.)
In this action, therefore, we must determine whether defendants have
shown that plaintiffs have not established a prima facie case of negligence, “a
showing that would forecast the inevitability of a nonsuit in defendants’ favor. If
so, then under such circumstances the trial court was well justified in awarding
summary judgment to avoid a useless trial.” (Saelzler, supra, 25 Cal.4th at p. 768;
see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335, fn. 7; see also id. at
p. 374 (conc. opn. of Chin, J.) [amendments to summary judgment statute
modified traditional rule to provide that moving party may establish summary
judgment by showing plaintiff failed to present triable evidence crucial to the
case].)
In performing our de novo review, we view the evidence in the light most
favorable to plaintiffs as the losing parties. (Saelzler, supra, 25 Cal.4th at p. 768.)
In this case, we liberally construe plaintiffs’ evidentiary submissions and strictly
scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or
ambiguities in plaintiffs’ favor. (Ibid.) Keeping these principles in mind, we
resolve the action in defendants’ favor.
2
FACTS
Southcoast Childcare Centers, Inc. (Southcoast), had leased its child care
property from First Baptist Church of Costa Mesa (the Church) since 1997. The
child care center was located on a busy street corner on Santa Ana Avenue in
Costa Mesa. A four-foot-high chain link fence enclosed the playground located
adjacent to the sidewalk and street. On May 3, 1999, Steven Abrams intentionally
drove his large Cadillac Coupe de Ville through the fence, onto the playground,
and into a group of children.
The carnage caused by Abrams’s act was horrific. He killed two children,
Brandon Wiener and Sierra Soto, and injured several others. Plaintiffs Aaron and
Pamela Wiener, the parents of Brandon, and Eric and Cindy Soto, the parents of
Sierra (collectively, plaintiffs), sued Southcoast and the Church (collectively
defendants),1 alleging wrongful death, negligence, and premises liability.
Plaintiffs also sued Abrams, who is not a party to this appeal. A court-appointed
psychiatrist examined Abrams and concluded that “the offense at the schoolyard in
itself, in the context of Mr. Abrams’ life patternbehavior and in the context of
our society’s standards and norms, was patently and highly absurd and bizarre, and
was so outrageous that it borders on the inconceivable.” Abrams was convicted of
first degree murder in the deaths of Brandon and Sierra with lying-in-wait and
multiple murder special circumstances, attempted murder, and inflicting great
bodily injury on the injured children. He was sentenced to life without parole.
Plaintiffs’ complaints against defendants, which were consolidated in the
trial court, alleged that defendants were aware the chain link fence in front of the
property provided inadequate protection against intrusion into the child care
center, that the fence was three to four feet from the roadway, and that Shirley

1
There are no issues regarding control of the property or fault that would
require us to treat defendants separately.
3


Hawkinson, owner of Southcoast, had previously requested the Church provide
funds to erect a higher fence in order to prevent the children from escaping the
property. In the past, before Southcoast operated the child care center, a few
noninjury traffic accidents happened near the property next to the sidewalk.
One freak accident occurred in 1996, of which Hawkinson testified she had
no knowledge. According to a neighbor, a mail truck pulled up to the sidewalk
across the street from the child care center, and the mail carrier reached out of his
truck to open the adjacent mailbox. As the mail carrier reached for the box, he
slipped, did a flip, and landed between the mailbox and the truck. The truck took
off and headed toward the fence across the street. At the time, the property was
leased by another school, not Southcoast. The truck bounced over the curb and
went through the fence before coming to a stop at a tree inside the yard. Other
than the mail carrier, who hurt his back, no one was injured in the incident.
Neighbors testified that other traffic incidents occurred near the premises
involving vehicles that hit the curb, although no cars had gone through the fence at
the child care center’s location. The City of Costa Mesa reported no known traffic
accidents at the child care center’s site. Plaintiffs alleged, however, that had a
sturdier barrier (i.e., a brick and iron fence) been in place at the time Abrams
decided to kill the children, the barrier would have prevented him from driving his
car onto the playground and killing them.
In nearly identical responses, defendants each moved for summary
judgment, contending that Abrams’s murderous rampage was a “wholly
unforeseeable” criminal act that could not give rise to negligence liability under
Ann M., supra, 6 Cal.4th 666. Defendants’ moving papers included Hawkinson’s
declaration stating that she was unaware of any prior criminal acts on the premises
before Abrams’s attack. Neither defendant was aware of any criminal acts or
incidents occurring on or around the child care property, and neither had notice of
4
any prior similar acts that would place it on notice of a need for increased security.
The Church also contended that the fence surrounding the playground was in
compliance with the applicable code and safety regulations on the date of the
incident.
In opposition to the summary judgment motions, plaintiffs asserted that
defendants owed a duty as a matter of law to plaintiffs, because it was foreseeable
that any vehicle could leave the road and strike the playground fence. Plaintiffs
contended that defendants had a general duty to maintain their property in a
reasonably safe condition, and that defendants had a statutory duty to fence the
playground in a manner that protected the children. Plaintiffs argued that it did
not matter whether the driver of the vehicle that killed the children acted
negligently or with criminal intent, because the risk of harm from an unsafe fence
was the same, and that defendants owed a duty to make the fence stronger.
Plaintiffs claimed that the four-foot-high chain link fence surrounding the
property failed to protect the children from Abrams’s car, and a stronger fence
would likely have been allowed under the then current City of Costa Mesa Zoning
Code. (Costa Mesa Zoning Code, § 13-75 [requiring Planning Commission
approval of new fence or wall to be constructed adjacent to a public street].) In
addition, plaintiffs argued that defendants had not shown as a matter of law that
the harm to the children was “wholly unforeseeable,” that defendants were
unaware of any similar or other criminal incidents that occurred on or around the
child care center’s property, or that the potential danger was unknown to
defendants.
Defendants replied that the prior similar incident involving the mail truck
was not a prior similar incident that made Abrams’s crime foreseeable.
Defendants also responded that the fence in place at the time of the rampage met
all code and safety requirements, and was sufficient to stop traffic from entering
5
the property in most cases. (Health & Saf. Code, § 1596.81; Cal. Code Regs., tit.
22, § 101238.2, subd. (g) [requiring playgrounds to be “enclosed by a fence to
protect children and to keep them in the outdoor activity area. The fence shall be
at least four feet high”].)2 Therefore, according to defendants, the fence was
sufficient to stop traffic from entering the property in all foreseeable
circumstances.
The trial court granted summary judgment for defendants after finding that,
under Ann M., supra, 6 Cal.4th 666, plaintiffs failed to present evidence of prior
similar incidents of violent crime or criminal acts and therefore failed to show
defendants owed a duty to prevent Abrams’s murderous rampage. The Court of
Appeal reversed the judgment, holding that an “errant” motorist careening through
the fence accidentally was a foreseeable event, so that defendants’ failure to build
a stronger fence was a legal cause of the incident here, even though the actual
incident was criminal in nature. We granted review.
DISCUSSION
As indicated, in order to prevail in a negligence action, plaintiffs must show
that defendants owed them a legal duty, that defendants breached that duty, and
that the breach proximately caused their injuries. (Ann M., supra, 6 Cal.4th at p.
673.) In the case of a landowner’s liability for injuries to persons on the property,
the determination of whether a duty exists, “involves the balancing of a number of

2
In a claim not addressed by the Court of Appeal or raised in a petition for
rehearing, plaintiffs claim that because the fence did not stop Abrams’s car from
entering the child care property, defendants violated the foregoing statute and
regulations in failing to protect the children from harm. The alleged statutory
violation, plaintiffs claim, was negligence per se. Although we normally will not
consider an issue that the Court of Appeal omitted, or that plaintiffs failed to raise
in a petition for rehearing (Cal. Rules of Court, rule 29(b)(2)), we note that even if
we were to decide the question, the facts unequivocally show that the fence in
place at the time of the murders did meet government regulatory standards. (See
Cal. Code Regs., tit. 22, § 101238.2.)
6


considerations; the major ones are the 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 the 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, 112-113; see Rest.2d Torts, §§ 344, 349.) When
children are the focus of care, the landlord’s duty is to protect the young from
themselves and guard against perils that are reasonably foreseeable. (McDaniel v.
Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7.) “The determination of the scope
of foreseeable perils to children must take into consideration the known propensity
for children to intermeddle.” (Ibid.) The existence of a duty and foreseeability,
when analyzed to determine the scope of a duty, is a question of law that an
appellate court will determine de novo. (Ann M., supra, 6 Cal.4th at p. 678.)
Before our decision in Ann M., supra, 6 Cal.4th at page 674, the rule in
California was that third party criminal acts were not foreseeable without the
existence of prior similar incidents. (Wingard v. Safeway Stores, Inc. (1981) 123
Cal.App.3d 37, 43.) In 1985, this court appeared to modify the prior similar
incidents rule to hold that courts should determine foreseeability under a test that
looks to the totality of the circumstances. (Isaacs v. Huntington Memorial
Hospital (1985) 38 Cal.3d 112, 127-129 (Isaacs).)
Ann M. recognized, however, that replacing the prior similar incidents rule
with a totality of the circumstances test for determining liability confused lower
courts, particularly when negligence liability for a third party criminal act would
require a landowner to anticipate that a criminal act might occur on the premises.
(Ann M., supra, 6 Cal.4th at p. 677.) The court stated: “Unfortunately, random,
7
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. Upon further reflection and in light of the increase in violent
crime, refinement of the rule enunciated in Isaacs, supra, 38 Cal.3d 112, is
required.” (Ann M., supra, at p. 678.) The court concluded that the “broad
language used in Isaacs has tended to confuse duty analysis generally in that the
opinion can be read to hold that foreseeability in the context of determining duty is
normally a question of fact reserved for the jury. [Citation.] Any such reading of
Isaacs is in error.” (Ibid.)
Ann M. announced the rule we follow today, namely that “California law
requires landowners to maintain land in their possession and control in a
reasonably safe condition. [Citations.] 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.) We also observed
that “a duty to take affirmative action to control the wrongful acts of a third party
will be imposed only where such conduct can be reasonably anticipated.” (Id. at
p. 676.)
In the case of a criminal assault, Ann M. held that the decision to impose a
duty of care to protect against criminal assaults requires “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.] Or, as one appellate court has accurately explained, duty
8
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.” (Ann M., supra, 6 Cal.4th at pp. 678-679.)
The plaintiff in Ann M. was raped at the photo store where she worked.
She then sued the shopping plaza in which the store was located, claiming it had a
duty to hire security guards to protect against such crimes. (Ann M., supra, 6
Cal.4th at p. 671.) In determining whether a duty was owed, the court balanced
the foreseeability of the criminal act against the burden, vagueness, and efficacy of
the proposed security precaution. (Id. at p. 679.) Some evidence existed of prior
crimes in the shopping plaza, including bank robberies, purse snatchings, and a
man pulling down a woman’s pants, but nothing akin to rape. (Id. at p. 671.) We
observed that the burden of hiring security guards was extremely high, so high in
fact, that the requisite foreseeability to trigger the burden could rarely, if ever, be
proven without prior similar incidents. (Id. at p. 679.)
In Sharon P., supra, 21 Cal.4th 1181, we extended Ann M.’s rule, that had
been limited to the hiring of security guards, to an action involving a sexual
assault at gunpoint that occurred in a subterranean parking garage. (Sharon P.,
supra, at p. 1185.) The attack against the plaintiff had occurred on the premises of
a commercial landlord’s building that had experienced no prior violent attacks.
(Ibid.) Although the bank on the property’s ground floor had experienced bank
robberies in the past, the parking garage assault was the first of its kind on the
premises. The plaintiff, however, argued that her injury was foreseeable even in
the absence of prior violent attacks. (Id. at p. 1191.) She relied on a footnote in
Ann M. in which we implied that a plaintiff may recover damages if he or she can
show that the property was “so inherently dangerous that, even in the absence of
prior similar incidents, providing security guards will fall within the scope of a
landowner’s duty of care.” (Ann M., supra, 6 Cal.4th at p. 680, fn. 8.) Sharon P.,
9
however, rejected the plaintiff’s argument for a “per se rule of foreseeability in
cases involving underground parking structures.” (Sharon P., supra, 21 Cal.4th at
p. 1192.) The court specifically observed that it was shown no evidence that
would allow it to find that the underground parking structure was so inherently
dangerous that security guards were required for protection even without prior
similar incidents. (Ibid.)
Sharon P. did acknowledge that two decisions had supported a finding of
foreseeability “with regard to assaults occurring on properties that have some
history of nonassaultive crime.” (Sharon P., supra, 21 Cal.4th at p. 1197, citing
Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, and Gomez v. Ticor (1983)
145 Cal.App.3d 622.) But Sharon P. made it clear that extending this broadened
view of reasonable foreseeability is warranted only when “it would be reasonable
to anticipate that a person would be subject to violent attack if he or she were to be
present at an otherwise foreseeable crime on the premises or if he or she were to
interrupt such a crime in progress.” (Sharon P., supra, at p. 1197.)
Sharon P. also observed that the broadened foreseeability rule that the
plaintiff proposed, would “lead to incongruous results.” (Sharon P., supra, 21
Cal.4th at pp. 1194-1195.) The court noted that “under the rule advocated by
plaintiff, defendants would be saddled with the significant burden of hiring
security guards to patrol the underground garage simply because it is an
underground garage, without regard to the dissimilarity of the prior criminal
incidents elsewhere on the premises or to the garage’s 10-year history of crime-
free existence. Indeed, such a rule would burden virtually all owners of
underground commercial garages in contravention of settled state policy that they,
as landlords, should not be forced to become the insurers of public safety.” (Id. at
p. 1195.)
10
In analyzing the duty and foreseeability issue, the Court of Appeal below
disregarded Ann M.’s balancing test and distinction between ordinary negligence
and prior violent criminal acts, and Sharon P.’s carefully considered extension of
Ann M., and instead looked to whether defendants’ playground was generally
vulnerable to “errant traffic.” The court placed particular emphasis on the “kind of
harm” plaintiffs’ children suffered rather than the criminal act itself. The court
observed that the nature of the harmbeing struck by an automobile driven onto
the playgroundwas not dependent on the driver’s criminal state of mind, as the
sexual assault in Ann M. was dependent on the perpetrator’s criminal intent. The
court opined that defendants’ conduct in failing to erect a sturdier barrier that
would have withstood the assault from the car or defendants’ failure to move the
children to a more protected part of the child care center, resulted in the kind of
harm for which negligence liability attaches. (See Ballard v. Uribe (1986) 41
Cal.3d 564, 572-573 [imposing liability on construction company owner for
creating unreasonable risk of harm on site by leaving keys in defective
machinery].) In other words, the Court of Appeal believed that the harm caused to
the children on defendants’ premises was foreseeable.
The Court of Appeal and plaintiffs found analogous Robison v. Six Flags
Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1301 (Robison), which held that
when “an observable danger ripens into an accident, the accident is foreseeable for
purposes of duty analysis.” In Robison, the plaintiff was injured at a picnic area
located adjacent to a parking lot in the defendant’s amusement park. A third party
attempted to start his vehicle by pushing it as his developmentally disabled friend
drove the car. The friend had never before driven an automobile and when the car
started, she could not apply the brakes in time to prevent it from rolling into the
picnic area and injuring the plaintiff. The defendant amusement park was found
liable in negligence for the plaintiff’s injuries after the court determined it was
11
foreseeable that a car could drive into the picnic area because the parking lot was
designed with a heavily traveled parking lane that had no separation from the
picnic area other than 40 feet of grass. (Robison, supra, 64 Cal.App.4th at pp.
1298-1299 [see also Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-58
[phone company liable when out-of-control driver struck telephone booth near
driveway in parking lot adjacent to freeway].)
Plaintiffs use Robison as an example of the kind of harm that should have
been guarded against in this action. They assert that a third party’s criminal intent
is immaterial when looking at the harm that occurred and determining
foreseeability. Plaintiffs cite to the mail truck incident and several minor car
accidents in front of the child care center in which the curb and sidewalk
adequately kept the car from crashing through the chain link fence onto the
property. They argue these incidents were indicative of prior similar incidents that
made foreseeable any future occasions of cars crashing through the fence.
In relying on Robison, supra, 64 Cal.App.4th at pages 1298-1299, the Court
of Appeal (and plaintiffs) failed to consider the important differences between the
two cases. Specifically, the court did not give due consideration to the criminal
nature of Abrams’s injury-producing act, and thus created a duty test that is far too
broad, even when we are dealing with the landowner’s duty to protect children
from perils that reasonably could have been foreseen. Indeed, Robison would not
support the Court of Appeal’s logic. It is true that in an ordinary negligence
action, the precise details of the third party’s actions are not overly significant.
(Robison, supra, 64 Cal.App.4th at p. 1298.) But ours is not an ordinary
negligence action. As Robison observed, Ann M. was inapplicable in that case
because the courts look to a higher level of foreseeability of crime in a particular
location, as might be indicated by prior similar incidents. (Robison, supra, 64
Cal.App.4th at p. 1301.)
12
In noting that Ann M. was based on a criminal act, Robison acknowledged
that our cases analyze third party criminal acts differently from ordinary
negligence, and require us to apply a heightened sense of foreseeability before we
can hold a defendant liable for the criminal acts of third parties. (Robison, supra,
64 Cal.App.4th at p. 1301.) There are two reasons for this: first, it is difficult if
not impossible in today’s society to predict when a criminal might strike. Also, if
a criminal decides on a particular goal or victim, it is extremely difficult to remove
his every means for achieving that goal. As Robison correctly observed, “a
criminal can commit a crime anywhere” “but cars cannot crash into picnic tables
just anywhere.” (Id. at p. 1301.) Robison made the distinction between acts of
ordinary negligence and criminal acts by noting that “[t]he burden of requiring a
landlord to protect against crime everywhere has been considered too great in
comparison with the foreseeability of crime occurring at a particular location to
justify imposing an omnibus duty on landowners to control crime.” (Ibid.) The
court concluded that “[t]here is no legal requirement in [circumstances
surrounding a foreseeable accident] for the type of heightened notice which might
be provided by a prior similar incident, as Ann M. found may be necessary in
instances of third party crime.” (Ibid.)
Applying Ann M.’s balancing test to the present facts, we conclude
defendants owed no duty to plaintiffs because Abrams’s brutal criminal act was
unforeseeable. (Ann M., supra, 6 Cal.4th at pp. 676-679.) No evidence indicated
defendants’ child care facility had ever been the target of violence in the past and
no hint existed that either defendants or any other similar business establishment
had ever been the target of any criminal acts. Indeed, here, the foreseeability of a
perpetrator’s committing premeditated murder against the children was impossible
to anticipate, and the particular criminal conduct so outrageous and bizarre, that it
13
could not have been anticipated under any circumstances. (See Alvarez v. Jacmar
Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1211-1212.)
One final observation may serve to clarify an additional reason to reject the
Court of Appeal’s logic in treating this action as an ordinary negligence matter,
regardless of the third party criminality that led to the childrens’ deaths. This is,
even if we were to treat this case as one involving ordinary landlord negligence,
and looked at the “kind of harm” the children suffered, rather than the criminal act
itself, we would still distinguish the action from Robison, supra, 64 Cal.App.4th
1294. There, the property’s physical layout, traffic pattern, and inviting
recreational area, made an injurious automotive intrusion on the proximately
located picnic area foreseeable. By contrast, in the present action, the one freak
accident involving a runaway mail truck in which no one was injured could have
occurred anywhere, at any time. That fact, together with the evidence indicating
the physical layout of defendants’ fence and the playground had adequately
protected the children against all other intrusions, was simply inadequate to make
any automobile intrusion through the fence foreseeable. Although, as we observed
in Sharon P., supra, 21 Cal.4th at p. 1197, some types of crime might be
foreseeable without prior similar incidents, so that a simple security measure
might deter a particular act, or foreseeability might be shown by the occurrence of
similar nonidentical events, this is not such a case.
CONCLUSION
Plaintiffs have not shown they can prove Abrams’s murderous act was
foreseeable. Without prior similar criminal acts, or even any indication of prior
criminal acts or intrusions of any type in the surrounding businesses, defendants
here could not have been expected to create a fortress to protect the children, or to
take further steps to deter or hinder a vicious murderer, unconcerned about the
safety of innocent children, from committing his crime.
14
We conclude we should reverse the judgment of the Court of Appeal with
directions to affirm the award of summary judgment in defendants’ favor.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
BROWN, J.

15





CONCURRING OPINION BY MORENO, J.

I agree with the majority that the award of summary judgment in the
childcare center’s favor should be affirmed, and I agree with the “final
observation” in the majority opinion that the record before us is “simply
inadequate to make any automobile intrusion through the fence foreseeable.”
(Maj. opn. ante, at p. 14.) In my view, the circumstance that the event that caused
the injuries in this case was not foreseeable is all that is necessary to resolve this
case.
The majority focuses upon whether the childcare center should be absolved
from liability because the driver acted intentionally rather than negligently. This
is an interesting question, but it is unnecessary to resolve it in this case. If it was
foreseeable that children on the playground might be injured by automobiles
accidentally entering the playground, and the childcare center negligently failed to
provide a sufficient barrier to protect the children against this danger, we would be
faced with the vexing question of whether the childcare center nevertheless should
be absolved from liability in this case because the driver of the automobile that
entered the playground acted intentionally rather than negligently. But we are not
faced with that question in this case, because plaintiffs have not raised a triable
issue of fact whether the childcare center negligently failed to protect the children
against automobiles entering the playground in any fashion.
1


We should not be eager to base a landowner’s liability for an injury caused
by a third party upon the mental state of the third party. Such an approach could
prove troublesome if the mental state of the third party was difficult to determine.
Consider the example of a property owner who negligently fails to provide a
sufficient barrier to prevent automobiles from entering a playground. If an
automobile enters the playground and injures a child and the driver is killed, it
may be difficult to determine whether the driver acted intentionally or negligently.
I am hesitant to adopt a rule that hinges whether a landowner is liable upon the
mental state of a third party that causes injury, rather than upon whether the
landowner was negligent in failing to guard against the type of danger that caused
the injury and whether such negligence was a proximate cause of the injury.
MORENO, J.
I CONCUR:
WERDEGAR, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Wiener v. Southcoast Childcare Centers Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 107 Cal.App.4th 1429
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S116358
Date Filed: May 6, 2004
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: Hugh Michael Brenner

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Ginsburg & Hlywa and Evan L. Ginsburg for Plaintiffs and Appellants Aaron Wiener and
Pamela Wiener.

Law Offices of Federico C. Sayre, Federico C. Sayre, Daniel H. Cargnelutti and Emery El-Habiby for
Plaintiffs and Appellants Eric Soto and Cindy Soto.

__________________________________________________________________________________

Attorneys for Respondent:

McKay, Byrne & Graham, John P. McKay, Michael P. Acain, Michael A. Byrne and David R. Denton for
Defendant and Respondent First Baptist Church of Costa Mesa.

Jeffery & Grosfeld, Mona J. Jeffery; Harris & Green, Lon Harris, Gray L. Green and Gregory Heuser for
Defendant and Respondent Southcoast Childcare Centers, Inc.

Stutz, Artiano, Shinoff & Holtz, Daniel R. Shinoff, Paul V. Carelli IV and Jack M. Sleeth, Jr., for The
Educational Legal Alliance of the California School Boards Association as Amicus Curiae on behalf of
Defendant and Respondent Southcoast Childcare Centers, Inc.

Deborah J. La Fetra for Pacific Legal Foundation and Pacific Justice Institute as Amici Curiae on behalf of
Defendants and Respondents.


1



Counsel who argued in Supreme Court (not intended for publication with opinion):

Evan L. Ginsburg
Law Offices of Ginsburg & Hlywa
440 East Commonwealth, Suite 100
Fullerton, CA 92832
(714) 680-3636

Federico C. Sayre
Law Offices of Federico C. Sayre
900 North Broadway, Fourth Floor
Santa Ana, CA 92701
(714) 550-9117

John P. McKay
McKay, Byrne & Graham
3250 Wilshire Boulevard, Suite 603
Los Angeles, CA 90010-1578
(213) 386-6900

Gary I. Green
Harris & Green
5959 West Century Boulevard, Suite 1100
Los Angeles, CA 90045
(310) 665-8656

2


Opinion Information
Date:Docket Number:
Thu, 05/06/2004S116358

Parties
1Southcoast Childcare Centers Inc. (Defendant and Respondent)
Represented by Gary Leland Green
Harris & Green
5959 W Century Blvd #1100
Los Angeles, CA

2Southcoast Childcare Centers Inc. (Defendant and Respondent)
Represented by Mona Jane Jeffery
Jeffery & Grosfeld LLP
725 Town & Country Rd., Suite 310
Orange, CA

3Wiener, Aaron (Plaintiff and Appellant)
Represented by Evan L. Ginsburg
Attorney at Law
440 E Commonwealth, Suite A
Fullerton, CA

4First Baptist Church Of Costa Mesa (Defendant and Respondent)
Represented by John P. Mckay
McKay, Byrn, Graham, Et Al
3250 Wilshire Blvd, Ste 603
Los Angeles, CA

5Soto, Eric (Plaintiff and Appellant)
Represented by Daniel H Cargnelutti
Law Ofc Federico C. Sayre
900 N Broadway, 4th FL.
Santa Ana, CA

6Pacific Legal Foundation (Amicus curiae)
Represented by Deborah Joyce Lafetra
Pacific Legal Foundation
10360 Old Placerville Rd.,#100
Sacramento, CA

7Pacific Justice Institute (Amicus curiae)
8California School Boards Association (Amicus curiae)
Represented by Daniel R. Shinoff
Stutz Artiano et al
401 West A St #1500
San Diego, CA


Disposition
May 6 2004Opinion: Reversed

Dockets
May 30 2003Petition for review filed
  respondent SOUTHCOAST CHILDCARE CENTERS, INC.
May 30 20032nd petition for review filed
  counsel for respondent, First Baptist Church of Costa Mesa dba Lighthouse Coastal Community Church
Jun 2 2003Record requested
 
Jun 20 2003Answer to petition for review filed
  by counsel for appellants Aaron Wiener and Pamela Wiener (combined answers) to petns filed resps SouthCoast Childcare Centers, Inc. & First Baptist church Of Costa Mesa
Jun 30 2003Reply to answer to petition filed
  respondent Southcoast Childcare Centers, Inc.
Jun 30 2003Reply to answer to petition filed
  respondent First Baptist Church of Costa Mesa
Jul 18 2003Time extended to grant or deny review
  to 8-28-03
Jul 30 2003Petition for Review Granted (civil case)
  George, C.J. and Brown, J., were absent and did not participate. Votes: Kennard, ACJ., Baxter, Werdegar, Chin and Moreno, JJ.
Aug 5 2003Record requested
  1-box containing 4-doghouses
Aug 7 2003Certification of interested entities or persons filed
  by aplts Eric & Cindy Soto
Aug 11 2003Certification of interested entities or persons filed
  respondent Southcoast Childcare Centers, Inc.
Aug 11 2003Request for extension of time filed
  to file opening brief/merits to 9-29-03>> respondent Southcoast Childcare Centers, Inc.
Aug 14 2003Request for extension of time filed
  by resp First Baptist to file opening brief on the merits, to 9/29.
Aug 14 2003Certification of interested entities or persons filed
  by resp First Baptist Church
Aug 19 2003Extension of time granted
  to 9-29-03 for respondents Southcoast Childcare and First Baptist Church to file their opening briefs on the merits.
Sep 2 2003Change of Address filed for:
  counsel for Resp Southcoast
Sep 25 2003Opening brief on the merits filed
  by counsel for respondent First Baptist Church of Costa Mesa
Sep 29 2003Opening brief on the merits filed
  by counsel for respondent Southcoast Childcare Centers, Inc.
Oct 21 2003Request for extension of time filed
  answer brief/merits for respondents Eric Soto and Cindy Soto. asking to 12-5-04.
Oct 27 2003Extension of time granted
  Respondent's time to serve and file the answer brief is extended to and including December 5, 2003.
Oct 29 2003Request for extension of time filed
  by counsel for appellant's Aaron Wiener & Pamela Wiener to file answer/brief merits to Dec. 5, 2003
Nov 10 2003Extension of time granted
  to 12-5-03 for aplts Aaron & Pamela Wiener to file the answer brief on the merits.
Dec 5 2003Request for extension of time filed
  resp's Eric Soto & Cindy Soto requesting to Dec. 19, 2003, to file answer brief on the merits
Dec 5 2003Answer brief on the merits filed
  appellants Aaron Wiener and Pamela Wiener
Dec 9 2003Request for extension of time filed
  to file Southcoast Childcare Centers, Inc's Reply Brief/Merits asking to January 9, 2004.
Dec 10 2003Extension of time granted
  to 12-19-03 for aplts/resps (Eric & Cindy Soto) to file the answer brief on the merits.
Dec 15 2003Request for extension of time filed
  by counsel for resp First Baptist Church Of Costa Mesa to file reply brief/merits to January 9, 2004
Dec 18 2003Extension of time granted
  for resp Southcoast Child Care to file the reply brief on the merits, to 1-9-04.
Dec 19 2003Answer brief on the merits filed
  appellants Eric Soto and Cindy Soto
Dec 19 2003Extension of time granted
  to 1-9-04 for resp First Baptist Church of Costa Mesa to file the reply brief on the merits.
Jan 8 2004Application to file over-length brief filed
  by resps Southcoast Childcare Centers, Inc. (reply brief on the merits)
Jan 9 2004Reply brief filed (case not yet fully briefed)
  by counsel for respondent First Baptist Church of Costa Mesa
Jan 12 2004Reply brief filed (case fully briefed)
  (with permission) by respondent Southcoast Childcare Centers, Inc.
Feb 6 2004Received application to file amicus curiae brief; with brief
  by Pacific Legal Foundation in support of Resps.
Feb 9 2004Received application to file amicus curiae brief; with brief
  by the Educational Legal Alliance of the Calif. School Boards Association in support of resps.
Feb 10 2004Case ordered on calendar
  3-10-04, 9am, S.F.
Feb 17 2004Filed:
  Application of defts/resps Southcoast Childcare Centers, Inc. to divide o/a time
Feb 19 2004Permission to file amicus curiae brief granted
  by the Educational Legal Alliance of the California School Boards Association in support of resps. Answers may be filed w/in 20 days.
Feb 19 2004Amicus curiae brief filed
  by the Educational Legal Alliance of the Calif. School Boards Assn. in support of resps.
Feb 19 2004Permission to file amicus curiae brief granted
  by Pacific Legal Foundation and Pacific Justice Institute in support of resps. Answers may be filed w/in 20 days.
Feb 19 2004Amicus curiae brief filed
  by Pacific Legal Foundation and Pacific Justice Institute in support of resps.
Feb 25 2004Filed:
  Aplts' request to divide oral argument time evenly between the Sotos and the Wieners.
Feb 25 2004Request for extension of time filed
  by counsel for appellants Eric Soto & Cindy Soto to file consolidated answer to a/c briefs and for ext of time to file until 3-2-04.
Feb 25 2004Order filed
  Permission granted for two counsel to argue on behalf of resps.
Feb 25 2004Order filed
  The request to allocate 15 minutes to resp. Southcoast Childcare Centers and to allocate 15 min to resp. First Baptist Church of Costa Mesa is granted.
Mar 1 2004Extension of time granted
  for respondents to file a consolidated answer to the amicus curiae briefs, to 3-2-04
Mar 2 2004Response to amicus curiae brief filed
  combined answer brief of appellants Eric Soto & Cindy Soto to a/c briefs of The Education Legal Alliance Of The California School Boards Assoc. & Pacific Legal Foundation & Pacific Justice Institute
Mar 2 2004Order filed
  permission granted for two counsel to argue on behalf of aplts
Mar 2 2004Order filed
  The request to allocate 15 min to aplts Aaron & Pamela Wiener and to allocate 15 min to aplts Eric & Cindy Soto of aplts' 30-min allotted for oral argument is granted.
Mar 9 2004Response to amicus curiae brief filed
  by aplts (Wiener) to A/C briefs of Educational Legal Alliance and Pacific Legal Foundation
Mar 10 2004Cause argued and submitted
 
Mar 18 2004Filed:
  Letter, dated 3-16-04, from counsel for aplts.(Wieners)
Mar 19 2004Filed:
  letter, dated 3-18-04, from counsel for resp Southcoast Childcare Centers
May 6 2004Opinion filed: Judgment reversed
  with directions to affirm the award of summary judgment in defendants' favor. Majority opinion by Chin, J. --------------joined by George, CJ, Kennard, Baxter, Brown, JJ. Concurring opinion by Moreno, J. --- joined by Werdegar, J.
May 10 2004Filed:
  letter from resp South Coast re typo errors in opinion.
Jun 10 2004Remittitur issued (civil case)
 

Briefs
Sep 25 2003Opening brief on the merits filed
 
Sep 29 2003Opening brief on the merits filed
 
Dec 5 2003Answer brief on the merits filed
 
Dec 19 2003Answer brief on the merits filed
 
Jan 9 2004Reply brief filed (case not yet fully briefed)
 
Jan 12 2004Reply brief filed (case fully briefed)
 
Feb 19 2004Amicus curiae brief filed
 
Feb 19 2004Amicus curiae brief filed
 
Mar 2 2004Response to amicus curiae brief filed
 
Mar 9 2004Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website