L&B Real Estate v. Superior Court

Petitioners seek a writ of mandate directing the superior court to set aside its order denying their summary judgment motion. The question presented is whether testimony from a criminal trial may be used to support a motion for summary judgment filed in a civil case when the testimony is subject to an objection lodged pursuant to Evidence Code section 1292. We conclude it may not, and that this petition must, therefore, be denied.

I. Factual and Procedural History

Real party in interest Barbara Schwab was the plaintiff in the underlying wrongful death action. She is the mother of decedent Anitra Jolie Watson who was killed in an apartment owned by petitioners L&B Real Estate and William Little (hereafter L&B). Watson was either participating in an attempted robbery at the time she was killed, or was on the premises for some other purpose.

The complaint alleges that L&B rented an apartment to an individual who identified himself as “Sam Davis,” and that drugs were being sold from the apartment. 1 L&B allegedly knew about this criminal enterprise, and that the “potentially violent criminals” who were on the premises posed a danger to any person who came onto the…