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Case Number: 20STCV04658    Hearing Date: December 15, 2020    Dept: 56














      CASE NO.: 20STCV04658




Date:  December 15, 2020

Time: 8:30 a.m.

Dept. 56



MOVING PARTY: Defendant YB Real Estate Properties IV, LLC (“Moving Defendant”)


RESPONDING PARTY: Plaintiff Tyler McDaniel  


            The Court has considered the moving, opposition, and reply papers.



Plaintiff filed a complaint alleging the following causes of action: (1) premises liability; (2) negligence; (3) assault; (4) battery; (5) intentional infliction of emotional distress; (6) conspiracy to violate and violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (7) violation of the unfair competition law under Bus. & Prof. Code, § 17200 et seq.; and (8) violation of Health & Saf. Code, § 11570 et seq.



            Moving Defendant filed a demurrer to each cause of action in the complaint, as well as a motion to strike portions of the complaint.



            The meet and confer requirement has been met.



            The Court GRANTS Moving Defendant’s request for judicial notice.



A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)


Issue No.1: The First and Second Causes of Action

            Moving Defendant contends that the first and second causes of action fail for the following reasons: (1) it owed no duty to Plaintiff; (2) it did not breach any duty; (3) it cannot be held liable for the torts of another; and (4) Plaintiff’s own robbery was the superseding cause of his injuries. 


            At the time a lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions.  (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781.)  A lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons.  (Id.)  Criminal conduct which causes injury will ordinarily be deemed the proximate cause of an injury, superseding any prior negligence which might otherwise be deemed a contributing cause.  (Koepke v. Loo (1993) 18 Cal.App.4th 1444, 1449.)  Fraud and conspiracy must be pleaded with specificity.  (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 211.)  To allege a conspiracy, a plaintiff must plead: (1) the formation and operation of the conspiracy; and (2) damage resulting to plaintiff from a wrongful act done in furtherance of a common design.  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1173.)  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  Given that negligence and premises liability share the same elements, both causes of action require a showing of proximate cause.  (Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 216.) 


            The complaint alleges that due to an untrained, unsupervised, armed security guard at an unlicensed cannabis business located at 4207 West Pico Blvd. (the “Property”), Plaintiff was shot in his left shoulder.  Moving Defendant’s request for judicial notice shows that Plaintiff: (1) attempted to wrestle a jar of marijuana from an employee at the Property and was charged with robbery of the Property; and (2) was shot due to the security guard’s assumption that Plaintiff was armed, and the security guard was in fear.  The Court finds that Plaintiff’s criminal conduct was the superseding cause of his injuries[1].  Moreover, the Court finds that Plaintiff’s conspiracy allegations are not specifically alleged to hold Moving Defendant liable for any cause of action under a conspiracy theory. 


            Therefore, the Court SUSTAINS the demurrer to the first and second causes of action with 20 days leave to amend.


Issue No.2: The Third Through Eighth Causes of Action

            Moving Defendant contends that it cannot be liable for the third through fifth causes of action because Plaintiff’s conduct was the superseding cause of his own injuries.  Plaintiff has conceded to such argument as stated above.  Plaintiff also fails to address Moving Defendant’s argument that he lacks standing to bring the sixth through eighth causes of action, and the Court finds that Plaintiff has conceded to such argument under Moulton.


            Therefore, the demurrer to the third, fourth, fifth, sixth, seventh, and eighth causes of action is SUSTAINED with 20 days leave to amend as to Moving Defendant only. 





            Moving Defendant seeks to strike portions of the complaint.  Due to the demurrer to each cause of action being sustained with leave to amend, the Court GRANTS the motion to strike with 20 days leave to amend.   


            The Court does note that should Plaintiff choose to amend the Complaint and if the defects in pleading are not overcome by the new pleading, the Court will consider sustaining any further demurrers and/or motions to strike with prejudice.


            Moving party is ordered to give notice of this ruling.


In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.






Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.


         Dated this 15th day of December 2020





Hon. Holly J. Fujie

Judge of the Superior Court


[1] Plaintiff provides no legal authority to support his argument that his conduct was not the superseding cause of his injuries and the Court finds that Plaintiff has conceded to such argument under Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.  Due to such concession, the Court need not address the other arguments raised by Moving Defendant as to the insufficiency of the first and second causes of action.

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