Judge: Anne Hwang, Case: 22STCV08410, Date: 2024-05-09 Tentative Ruling

Case Number: 22STCV08410    Hearing Date: May 9, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On March 8, 2022, Plaintiff Pamela Jackson, individually and as successor in interest to Johnny Earl Jackson, (“Plaintiff”) filed a complaint against Michael Wellington and Does 1 to 20 for intentional tort, general negligence, and premises liability. The complaint alleges Johnny Earl Jackson (“Decedent”), Plaintiff’s spouse, was shot and killed on December 19, 2020 at 2131 S. Orange Drive, Los Angeles.  

On July 19, 2022, Plaintiff filed an amendment to the complaint substituting Ethel Wellington-Trawick as Doe 3.

Specially Appearing Defendant Ethel Wellington-Trawick (“Defendant”) now demurs to the complaint for failing to state facts to constitute a cause of action and for uncertainty. Defendant also moves to strike punitive damages. No opposition has been filed.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).  

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

The Declaration of Lisa L. Renaud, Defendant’s counsel, states the following: “On March 11, 2024, I sent a meet and confer letter to Plaintiff’s Counsel explaining the deficiencies in the Complaint and that Defendant did not own, possess, or control the Premises on the date of the Incident, nor was she present at the time of the Incident. I asked Plaintiff to dismiss Ms. Wellington-Trawick from the case as she was not a proper defendant. Plaintiff’s counsel and I exchanged additional emails and spoke on the phone, but to date, Plaintiff has not dismissed her complaint against Defendant, necessitating the current Demurrer.” (Renaud Decl. ¶ 8.) Therefore, the meet and confer requirement has been met.

JUDICIAL NOTICE

The Court denies the request for judicial notice of the Grant Deed in Exhibit A. The Court finds that the facts within the exhibit are the type that could be reasonably subject to dispute. (See Evid. Code § 452(h).)

ANALYSIS

As an initial matter, the Court finds that the complaint is not so vague or ambiguous to warrant sustaining the demurrer based on uncertainty. The allegations are clear enough for Defendant to ascertain what legal theories are being asserted. The Court now turns to whether the allegations state enough facts to constitute causes of action.

I. Intentional Tort

Here, the complaint does not specify exactly which intentional tort is asserted against defendants. However, “[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“ ‘[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.’”].)

The complaint asserts an unspecified cause of action against Defendants Michael Wellington and Does 1 to 20, stating “Defendant without provocation, intentionally shot (numerous times), Johnny Earl Jackson who died as a proximate and legal cause thereof. Defendant was aware of the dangers posed by the discharge of a firearm. After killing Jackson, Defendant fled his residence, in conscious disregard of what he had done and failed to render aid." (Complaint, 4.) 

Plaintiff appears to allege that only one defendant shot Decedent. This specific fact appears to conflict with the more general allegation that Defendants Michael Wellington and Does 1 to 20 are liable for directly shooting Decedent. “Where a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts, it is possible that a conflict or inconsistency will exist between the general allegation and the specific allegations. To handle these contradictions, California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235–36.)

Therefore, because Plaintiff specifically alleges that Defendant (singular) shot Decedent, it appears there was only one shooter. Michael Wellington was the only defendant that Plaintiff named in the complaint; Defendant was added later as Doe 3. Therefore, since the complaint alleges that Michael Wellington shot Decedent, there are insufficient facts to show that Defendant also shot Decedent. Therefore, the demurrer on this cause of action is sustained.  

II. Negligence

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)  

The negligence cause of action contains the same allegations as the intentional tort cause of action and appears to relate only to the shooter. Based on the discussion in the previous section, there are insufficient facts that Defendant shot Decedent. As a result, the negligence cause of action fails to allege a duty that Defendant owed to Decedent, how the breach occurred, causation, and damages. Therefore, the demurrer to the second cause of action is sustained.

III. Premises Liability

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

 “While negligence is ordinarily a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer.” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095.)

A. Duty  

In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.)¿¿“[T]he law imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse. [Citation.]” (Id. [internal quotation marks omitted].) 

Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242, see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take steps to prevent the wrongful acts of a third party is imposed only where such conduct can be reasonably anticipated].) Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)¿ 

¿ 

Traditionally, foreseeability of the risk does not necessarily turn on whether the same type of activity or event already occurred on the premises.¿ Rather, the issue is whether, in light of all the facts and circumstances (including the nature, condition and location of the premises, as well as the landlord's prior experience), the owner had reason to anticipate the general character of the event or harm, not its precise nature or manner of occurrence.¿ (Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 112, 129.)¿ However, where a “burdensome” duty is to be imposed on the landowner (e.g., requiring private security guards or other heightened security measures), a “high degree of foreseeability” is required. And “the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises.”¿ (Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 679.)¿¿

B. Analysis

Here, the complaint alleges: “The acts and omissions of Defendants occurred at Defendants residence. The wrongful death of decedent, Johnny Earl Jackson occurred and w (sic), including the foreseeable consequence of pulling out a gun, showed that Defendant failed to operate their home in a manner to protect their guests. This action of Defendant was created by the reasonable and foreseeable consequences of Defendant pulling out a gun in his residence. Defendants’ failure to operate, manage and control their home using reasonable care.” (Complaint, 6.)

Here, the complaint fails to allege facts that Defendant had reason to anticipate that a person could be shot on her premises. Additionally, the facts fail to allege that Defendant owed Decedent a duty to protect against third party criminal conduct. The complaint also does not allege affirmative conduct by Defendant to give rise to an independent duty. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 533, 536–41 [affirming the sustaining of a demurrer for failing to state facts of defendant’s misfeasance, a special relationship, or whether attack by third-parties was reasonably foreseeable].)

            Therefore, the demurrer to premises liability is sustained.  

Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc. § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342.)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Lastly, “[t]he mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

            Here, Defendant moves to strike the prayer for punitive damages. Since the Court sustained the demurrer, the motion to strike is moot.

CONCLUSION AND ORDER

Therefore, the Court SUSTAINS Defendant’s demurrer to the complaint with leave to amend. Any amended complaint must be filed and served within 30 days.

Defendant’s motion to strike is DENIED as moot.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.