CHERYL JONES v. ELDER GARDENS, INC.

FILE

Memorandum from Colin Smith to Associate.......….........................................……….. 2

Memorandum RE: Drafting a Motion for Summary Judgment.................………….….. 4

Memorandum RE: Summary of Cheryl Jones Deposition………........…………….…… 6

Memorandum RE: Summary of Daniel Pearson Deposition………........…………….… 8

Memorandum RE: Summary of Cheryl Jones Complaint………........…………….…… 11

City of Inglewood, County of Columbia Police Department

April 2018 – July 2018 Report of incidents…………..…………………………………… 13

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 Melendez, Smith & Davis, LLP
9000 S. La Cienega Blvd.
Inglewood, Columbia 88888
(555) 333-2222

MEMORANDUM
To: Associate
From: Colin Smith, Senior Partner
Date: December 6, 2019
Re: Jones v. Elder Gardens, Inc.

Our firm represents Elder Gardens Apartments, a senior citizen apartment

complex, who has been sued by their tenant, Cheryl Jones. On September 30, 2018,

Ms. Jones filed a premises liability Complaint against Elder Gardens, Inc. (Gardens).

Defendant’s Answer was filed on December 30, 2018, 10 days after our demurrer was

overruled by the Court.

Ms. Jones alleges she was assaulted and seriously injured by an unknown

male assailant in the parking garage at Elder Gardens Apartments. She claims

Gardens failed to repair a broken security gate in the parking garage, failed to

provide a 24 hr security guard on the premises, and failed to provide adequate lighting

throughout the garage.

We have completed some depositions on behalf of Gardens in this case so far

and we are very confident that the undisputed facts and the case law are supportive of

our position for a motion for summary judgment. Please draft defendant’s

memorandum of points and authorities in support of a motion of summary judgment in

which the Senior Partners request that you contend that the undisputed facts and case

law with regard to premises liability supports that there are no triable issues of material

fact as to the elements of both duty and causation. For duty, Defendant contends that

there is no evidence of prior similar incidents and thus the third-party criminal activity

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was not foreseeable and there is no triable issue of material fact. It will be

important to also include in your analysis a review of the Castaneda analysis to support

that there was no duty owed. For causation, Plaintiff has not presented any evidence to

support that there was a causal link between the contended failures of Defendant and

the assault that occurred thus there is no triable issue of material fact. It will be

important to reference citations to plaintiff’s complaint, plaintiff’s deposition and the

deposition of plaintiff’s security expert in the file for use in supporting your analysis. The

citations to Ms. Jones’ deposition with cites of pages 1-10 and pages 12-13 (as well as

the corresponding allegations in her Complaint up to paragraph 13) are facts we

consider to be undisputed in addition to citations to Mr. Pearson’s deposition at page 4,

lines 16-17, and page 9, line 9 through page 11. It is also undisputed that Ms. Jones

has made allegations as to what she contends were the failures of Gardens which can

be referenced from her Complaint at paragraph 17. I am providing you with our firm’s

memorandum on writing motions for summary judgment as well as some additional

evidence that has been gathered outside of discovery. In addition, the attached crime

report should be cited as evidence supporting that it is undisputed that there were no

documented similar crimes in the neighborhood for the three months prior to the

plaintiff’s alleged assault. Our position is that because this is a public record of reported

crimes which carries more evidentiary weight than any allegations Plaintiff has made of

second-hand accounts of similar crimes.

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 Melendez, Smith & Davis, LLP
9000 S. La Cienega Blvd.
Inglewood, Columbia 88888
(555) 333-2222

To: Attorneys

From: Executive Committee

Re: Persuasive Briefs in Support of Motions for Summary Judgment and/or

Motions for Summary Adjudication

To clarify the expectations of the firm and to provide guidance to attorneys, all

briefs in support of motions for summary judgment and/or adjudication (also called a

memorandum of points and authorities), shall include the following:

SECTION I. Introduction. Write a brief summary of the nature of the

underlying case with a detailed procedural history. The Introduction should also include

a summary of the basis of the motion argument.

SECTION II. Grounds. Specify and cite the statutory grounds for the motion.

SECTION III. Summary of Undisputed Facts. Write a summary of the relevant

undisputed facts with citations to the evidence.

SECTION IV. Argument. The body of each argument should analyze applicable

legal authority, including any applicable statutes and case law, and persuasively argue

how the facts and law support our position following an IRAC format. Authority

supportive of our position should be emphasized, but contrary authority should generally

be cited, addressed in the argument, and explained or distinguished. Do not reserve

arguments for reply or supplemental briefs. The higher Court’s own analysis in cases

that are either supportive or distinguishable should be used extensively where

appropriate in the analysis.

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 The firm follows the practice of writing carefully crafted subject headings which

illustrate the arguments they cover. The argument heading should succinctly summarize

the reasons the tribunal should take the position you are advocating. A heading should

be a specific application of a rule of law to the facts of the case and not a bare legal or

factual conclusion or a statement of an abstract principle. For example:

IMPROPER: DEFENDANT HAD SUFFICIENT MINIMUM CONTACTS TO ESTABLISH

PERSONAL JURISDICTION. PROPER: A RADIO STATION LOCATED IN THE STATE

OF FRANKLIN THAT BROADCASTS INTO THE STATE OF COLUMBIA, RECEIVES

REVENUE FROM ADVERTISERS LOCATED IN THE STATE OF COLUMBIA, AND

HOLDS ITS ANNUAL MEETING IN THE STATE OF COLUMBIA HAS SUFFICIENT

MINIMUM CONTACTS TO ALLOW COLUMBIA COURTS TO ASSERT PERSONAL

JURISDICTION.

SECTION V. Conclusion. This is a statement asking the court to rule in our

clients favor and summarizing the basis of the motion. It should specifically outline

the ruling which our client seeks.

Attorneys should not prepare a notice, table of contents, a table of cases, a

separate statement of undisputed facts or the index. These will be prepared after the

draft is approved.

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 Melendez, Smith & Davis, LLP
9000 S. La Cienega Blvd.
Inglewood, Columbia 88888
(555) 333-2222

MEMORANDUM
To: Associate
From: Colin Smith, Senior Partner
RE: CHERYL JONES V. ELDER GARDENS, INC.

Below is a summary prepared by one of our junior associates of the pertinent facts

from Ms. Jones’ deposition taken on March 26, 2019.

In late 2017, Ms. Jones rented her apartment at Elder Gardens Apartments

located at 5535 Cartel Avenue, Inglewood, Columbia. (Pg. 3, line 8). Elder Gardens

Apartments is located in the center of the neighborhood of Albany Heights. (Pg. 3, line

9). Ms. Jones had seen a newspaper advertisement for Elder Gardens Apartments,

which stated that it was a secure building. (Pg. 3, line 12). The apartment building had

several security features, including underground parking secured by an automatic gate

which required an access card for entry (the standard sort of iron gate that rises up from

the ground to permit a car to enter, then closes after the car has entered). (Pg. 5, line

8). In addition to the security gate, there were three other pedestrian gates or doors

leading from the parking garage. (Pg. 6, line 3). Two gates exited to a patio area of the

apartment building. The third was a door leading to the elevator, which ran between the

garage and the apartment building. (Pg. 7, line 4). These gates and the door require

keys to unlock them, and the keys are provided only to current tenants. (Pg. 7, line 9).

On August 3, 2018, Ms. Jones arrived home at about 6 p.m. and used her

security access card to enter the apartment building's underground garage. (Pg. 9, line

20). When she arrived, the gate was partially stuck open, with about an apx. 1 ½ foot

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gap between the bottom of the gate and the garage floor. (Pg. 10, line 5). She drove

down the ramp and pulled into her parking space. (Pg. 10, line 7). As she got out of her

car, a man attacked her at her car door and pulled her several feet behind the trash

cans in the garage where it was dimly lit. He grabbed her by the throat, beat her, and

sexually assaulted her. (Pg. 11, lines 3-22). Ms. Jones believes the man fled out

through the partially open security gate but she did not see him exit. (Pg. 12, line 3).

The man initially approached Ms. Jones from behind so she did not know where he

came from and she could not recognize him. (Pg. 13, line 4-5). He did not say or do

anything that enabled her to identify him. (Pg. 13, line 7-8).

Two weeks prior to this incident, Ms. Jones heard from a neighbor tenant who

told her that his car was broken into in the parking garage. (Pg. 14, line 9).

Approximately 3 months prior, Ms. Jones heard from the apartment manager

that a woman had been mugged on the street corner outside of a apartment complex

approximately 4 blocks from Gardens. (Pg. 15, line 22).

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 Melendez, Smith & Davis, LLP
9000 S. La Cienega Blvd.
Inglewood, Columbia 88888
(555) 333-2222

MEMORANDUM
To: Associate
From: Colin Smith, Senior Partner
RE: CHERYL JONES V. ELDER GARDENS, LLC

Below is a summary prepared by one of our junior associates of the pertinent facts

from Ms. Jones’ security expert Daniel Pearson’s deposition taken on April 2, 2019.

Pearson has an A.A. degree in Police Science, a B.S. degree in Criminal Justice

Administration, and at the time of his deposition was working on a Masters degree in the

same major. (Pg. 1, line 20-21). According to his resume, he conducts security surveys

where violent crime is a problem, provides advice on how to reduce the risk of crime,

conducts “crime demographic analysis and vulnerability assessments,” and testifies as

an expert witness in litigation involving allegations of inadequate security, negligence,

false arrest and the use of force. (Pg. 2, lines 24-27).

Mr. Pearson testified at his deposition that the apartment is in a “high crime

area” that the building “was designed to be a security building in that there were

wrought iron security gates installed in the garage in or about 1987,” that the building

had in the past been “marketed as [a] ‘security complex’ to attract tenants to the building

as opposed to some other building that didn't have those security amenities,” that the

“security gates were a critical part of the operation of the apartment complex” and that,

therefore, “the gate should have been maintained on a regular basis by someone ...

trained and skilled in repairing the gates....” (Pg. 4, lines 3-15). Mr. Pearson could not

produce any documentation or reference any data that supports his description of the

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neighborhood as “high crime.” (Pg. 4, lines 16-17).

“I think the nature of the parking structure ... being underground or below the

building, being remote and isolated, provided a potentially hazardous environment for

people that would have to drive in underground, essentially, and park there at night,

unless the security gates were properly functioning.” (Pg. 5, lines 1-2). “The facts of this

case seem to indicate that the security gate to the lower garage was defective on the

evening of Ms. Jones’ assault in that it would not fully close and allowed the

assailant to gain access to the parking structure and lie in wait for Ms. Jones to pull

into her parking space. (Pg. 6, lines 3-5).

When Mr. Pearson was asked whether the lack of security guard may have

contributed to the assault, he did not answer directly on the question and responded:

“It's my opinion that 24 hour on-site management should be required in a

property of this size.... I think had someone been on the premises acting in that

capacity, they would have become aware of the defective condition of the gate and had

an opportunity to make the repair.... I think when representations are made to tenants

regarding the safety of a building and the security amenities of a building, they need to

be maintained. I think based on my experience with assault cases in the rental housing

industry, it's my opinion that the assailant was waiting in the garage prior to Ms. Jones

arriving and ... presented himself to her once he realized she was alone and there were

no other witnesses in the garage.” (Pg. 7 lines, 2-26).

“Typically the assailant will have cased the location in advance, will know where

the escape routes are and will wait for the opportunity and wait for the victim to come to

him or provide the opportunity for him to attack the victim.” (Pg. 8, lines 6-8). He testified

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that the fact that the assailant attacked Ms. Jones in the parking structure indicates to

him that the assailant knew that either from prior experience or prior time at this location

that he would be undisturbed during that period of time, that there was a very small

chance of being observed by anyone, and that he would have an excellent ability to

escape, if necessary. (Pg. 8, lines 21-23). “I believe he selected this location because

of the conditions that he found, one being a broken gate providing him access.” (Pg. 9,

lines 1-2). “Too, the isolated, remote nature of the structure, the opportunities to hide,

and escape routes out of the building.” “I think they all contributed to his selection of this

particular building and the attack on Ms. Jones.” (Pg. 9, lines 5-6).

Mr. Pearson testified that he had no knowledge of the lighting conditions in the

garage at the time of the assault. (Pg. 9, line 9).

Pearson conceded that he did not know how the assailant gained entry into the

garage or whether he was admitted by a tenant. (Pg. 9, lines 10-12). He admitted that,

in addition to the security gate, there are three other entrances to the parking garage.

(Pg. 10, lines 1-2). Two of them are locked doors accessible from adjacent locked gated

patio areas which are accessible only with keys. (Pg. 10, line 5). The third means of

access is through the locked main door to the apartment building, down the lobby,

through a door next to the elevator and down a flight of stairs to the garage. (Pg. 10, line

7). There is no evidence that any of these doors were unlocked at the time of the

assault but Mr. Pearson noted that tenants he interviewed admitted to often propping

these doors open with doormats. (Pg. 11, line 3-8). Pearson also conceded that it was

possible that the assailant had a key. (Pg. 11, line 20).

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 Melendez, Smith & Davis, LLP
9000 S. La Cienega Blvd.
Inglewood, Columbia 88888
(555) 333-2222

MEMORANDUM
To: Associate
From: Patty Smith, Senior Partner
RE: CHERYL JONES V. ELDER GARDENS, INC.

Below is a summary prepared by one of our junior associates of the pertinent

allegations from CHERYL JONES’ Complaint dated September 30, 2018.

The subject litigation involves a criminal assault committed by an unknown

assailant upon plaintiff JONES. (Complaint at paragraphs 5-6). The assault

occurred on August 3, 2018 in the parking garage of the premises located at 5535

Cartel Avenue, Inglewood, Columbia commonly known as the Elder Gardens

Apartments. (Complaint at paragraph 7).

Premises Liability is the only cause of action brought against defendant

GARDENS. JONES, a senior citizen resident at Elder Gardens Apartments for over a

year prior to this incident, arrived home at 6:00 p.m. on August 3, 2018 (Complaint at

paragraphs 8-10). When she arrived home she used her security access card to enter

the apartment building’s underground garage and it was then that JONES noticed

that the gate was “partially stuck open” with a 2 to 3 foot gap between the bottom of the

gate and the garage floor. (Complaint at paragraphs 11-13). JONES then

proceeded to drive down the ramp and pull into her parking space and park her car.

JONES alleges that as she exited her vehicle she was attacked by a man who

grabbed her by the throat, beat her, and sexually assaulted her. (Complaint at

paragraphs 14-16). JONES alleges that Gardens failed to repair a broken security gate

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in the parking garage, failed to provide a 24 hr security guard on the premises, and

failed to provide adequate lighting throughout the garage. (Complaint at paragraph 17).

JONES bases her theory of liability on her allegations that 1) She rented

her apartment at Elder Gardens Apartments because she “wanted a secure building

with controlled access”; 2) The entire parking garage is dimly lit.; 3) When she visited

the apartment building she was shown “various security features of the building.”; 4)

She was assured by the building’s managers that this particular apartment building had

several working security features, including underground parking secured by an

automatic gate which required an access card for entry.; 5) There was no 24 hour

security guard employed by the apartment complex “who would have deterred crime.”;

6) That there had been a mugging on a street corner adjacent to the apartment complex

approximately three months prior; and 7) That there had been multiple break-ins in the

Gardens parking garage since the date she moved in. (Complaint at paragraphs 20-27,

and 30-37).

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 City of INGLEWOOD, state of Columbia
police Department
official Report of incidents
Date: April 28, 2019

Requested by: Melendez, Smith & Davis, LLP

Request date: January 5, 2019
Date range requested: April 2018 – July 2018
Neighborhood requested: Albany Heights
Search term requested: “APARTMENT”

BURGLARY, 04/13/18, 3900 block of N. 5th Street. At 3:50 am on April 13, an

unknown subject(s) entered a victim’s apartment and stole various items. The victim
was at home during the burglary, but had locked himself in the bedroom. The victim
looked out his window to see a Hispanic male, wearing an orange t-shirt running away
from the apartment while carrying two bags. Items reported stolen include a laptop,
iPod, Xbox video game console and the victims wallet.

ROBBERY, 04/17/18, 400 block of S. Glebe Road. On April 17 at 6:25 pm, a male
subject robbed a victim as she was walking out of a apartment parking garage. Billy
Lollar, 28, of Inglewood, Columbia was arrested and charged with robbery. He was
held on a secured bond.

BURGLARY, 05/26/18, 5100 block of S. 8th Road. Between 1 and 4 pm, on May
26, an unknown subject(s) entered an apartment through a bedroom window and stole
various items. Stolen items include televisions, laptop computers and jewelry. There is
no suspect description.

LARCENY FROM AUTO, 05/27/18, 300 block of S. Glebe Road. At 4:15 am on

May 27, a neighbor witnessed a subject entering numerous parked vehicles in the
parking lot of an apartment complex. The subject was found on scene with various
stolen items and arrested. The suspect was also wanted out of Columbia County for
felony embezzlement.

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ASSAULT AND BATTERY-ARREST, 6/11/18, 400 block of S. Glebe Road. On
June 11th at 12:20 am, a man assaulted a security guard at an apartment complex.
Josejusel Guevara, 29, of the neighboring City of Rochester, was charged with
Assault and Battery and Drunk in Public. He was held until sober.

BURGLARY, 6/16/18, 700 block of N. Stuart Street. On June 16th between 7 am

and 4 pm, an unknown subject entered apartment and stole cash and electronics. There
is no suspect information.

BURGLARY, 7/14/18, 900 block of S. Glebe Road. On July 14th at 7 am a woman

reported an unknown subject in her apartment. The man immediately fled. The
suspect was tall with blond hair and wearing a sports jersey.

LARCENY FROM AUTO, 07/20/18, 5535 Cartel Avenue. At 4:15 am on July 20,
a subject entered a parked vehicle in the garage of an apartment complex and stole
various personal items of little or no value. There is no suspect information.

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