Judge Anne Hwang, Case Number: 23CMCV00040, Date: 2023-09-13 Tentative Ruling

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 (which is highly encouraged). 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.

DEPARTMENT	32
HEARING DATE	September 13, 2023
CASE NUMBER	23CMCV00040
MOTION	Demurrer
MOVING PARTY	Defendants South Bay Villa Preservations, LP and SBV Housing Preservation
OPPOSING PARTY	Plaintiff Angela Grundy

Defendants South Bay Villa Preservations, LP and SBV Housing Preservation (“Defendants”) demur to the first amended complaint (FAC) filed by Plaintiff Angela Grundy (“Plaintiff”). The demurrer is opposed.

The FAC alleges that on February 16, 2021, Plaintiff’s daughter, Dorothea Johnson, was shot and killed on Defendants’ premises, an apartment complex. The FAC alleges that Defendants’ agents and employees knew that people carrying dangerous firearms gathered in their parking lot, and that Defendants did nothing to prevent these gatherings. She also alleges the gatherings posed a threat to the residents of the apartment complex and that Defendants negligently hired and/or supervised security guards from Precision Security. Plaintiff alleges that a gunshot from one of these gatherings killed her daughter while Plaintiff was on the premises. She alleges she heard the gunshot that killed Dorothea, and knew she was within range of the bullet. Plaintiff states she later located Dorothea and frantically called 911 but ultimately witnessed her bleed to death.

On January 9, 2023, Plaintiff filed this negligence action against Defendants seeking damages based on the February 2021 incident. On April 26, 2023, Plaintiff filed a first amended complaint.

Defendants demur to the second cause of action for negligence and third cause of action for premises liability, arguing that since Plaintiff was not physically present at the time her daughter was shot, and therefore, cannot claim to be a bystander for purposes of a claim for negligent infliction of emotional distress claim. Additionally, Plaintiff does not have standing to pursue a claim wrongful death as a parent of decedent, unless she was dependent upon her daughter. Plaintiff alleges that decedent was survived by two daughters and a spouse, who have filed a separate lawsuit seeking damages.

In opposition, Plaintiff argues that liability against SBV is vicarious because Defendants negligently hired and or supervised co-Defendant, Precision Security. Plaintiff alleges she was present at the injury producing event since she was at the same apartment complex and heard the gun shots. The declarations of decedent’s daughters are not subject to judicial notice and introduce evidentiary matters that are not appropriate at the demurrer stage. If the Court concludes that the FAC is defective, Plaintiff asks for leave to amend.

In reply, Defendants argue that based on the allegations of the FAC, Plaintiff was not at the scene of the injury-producing event. She was not aware of injury to her daughter at the time she heard the gun shots.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) 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.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)

Finally, 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).)

Counsel for Plaintiff and Defendant met and conferred prior to filing this demurrer pursuant to Code Civ. Proc. § 430.41, subd. (a)(3). (Vasquez Decl. ¶ 3.)

According to the declaration of Gabriel Wainfeld, counsel for Defendant did not attempt to meet and confer in person or by telephone as required, but rather sent an email to Plaintiff’s counsel. In any event, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41(a)(4).)

A cause of action for wrongful death is a statutory claim held by a decedent's heir. (Code Civ. Proc. §§ 377.60-377.62.) Its purpose is to compensate specified persons for the loss of companionship and for other losses suffered as a result of a decedent's death. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) Persons with standing to bring a wrongful death claim are enumerated in Code of Civil Procedure section 377.60, which provides:

A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.

“Because it is a creature of statute, the cause of action for wrongful death ‘exists only so far and in favor of such person as the legislative power may declare.” (Stennett v. Miller (2019) 34 Cal.App.5th 284, 290, internal quotations omitted.) “Thus, ‘ “the right to bring such an action is limited to those persons identified” ’ in the wrongful death statute, section 377.60.” (Id.) Further, “a plaintiff's ‘standing to bring a wrongful death action must be determined in accordance with the laws of intestate succession.’ ” (Id. at 295.)

Accordingly, pursuant to Code of Civil Procedure § 377.60, “a decedent's parents and siblings do not have standing to sue for wrongful death unless the decedent leaves behind no ‘children.’ ” (Id. at 298, emphasis in original.) “For purposes of the California wrongful death statute, Plaintiffs would have to establish the absence of surviving issue and standing through the intestate succession statute. Moreover, a demurrer may be sustained when a person does not have standing to sue.¿ (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009.)¿

Defendants raise the point that decedent in this action has children who have brought a wrongful death claim based on the same event (22STCV09891). Additionally, because the cases are related,[1] and because Plaintiff does not seem to argue standing in her opposition, the Court takes judicial notice of the court records of 22STCV09891 under Evid. Code § 452(d).

The Court further notes that “[t]he person who seeks to commence an action or proceeding … as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following…” (Code Civ. Proc. § 377.32.) No such affidavit has been filed by Plaintiff.

Therefore, Defendants’ demurrer is sustained due to Plaintiff’s lack of standing.

“ ‘Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply…’ ” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130.) “The law of negligent infliction of emotional distress in California is typically analyzed…by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.)

The elements of a cause of action for the negligent infliction of emotional distress based on the bystander theory are: (1) the plaintiff is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667–68; see also Ra v. Sup. Ct. (2007) 154 Cal.App.4th 142, 148–49 [bystanders must be closely related to the victim, have been present at the scene and contemporaneously aware of injuring, and have suffered serious emotional distress]; Smith v. Pust (1993) 19 Cal.App.4th 263, 273 [plaintiff must be direct victim or a bystander who witnessed to the injury].)

Moreover, plaintiff bystanders must prove “serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances … [S]erious mental distress may be found where a reasonable person normally constituted would be unable to adequately cope with the mental distress engendered by the circumstances of the case.” (Thing v. La Chusa, supra, 48 Cal.3d at 667-8, n. 12.)

Plaintiff was at the apartment complex where her daughter was shot and killed. Plaintiff heard the gun shots ring out that struck her daughter. At the time the Dorothea Johnson was shot, the Plaintiff was aware that the bullet that struck her daughter came from the regular, uncontrolled, parking lot party, which was going on that night, Plaintiff knew instantly that the shots rang out from that specific location from past experience and from her simultaneous auditory perceptions. Plaintiff knew that both her and her loved ones, including her daughter Dorothea Johnson, were in the range of any bullets flying from the parking lot party location to where her and her loved ones were located.

One of the bullets fired by that individual struck the Plaintiffs daughter Dorothorea Johnson, who was in her own apartment, killing her. The Plaintiff, hearing gunfire immediately left her own apartment in the complex (apartment # 50). She ran to where her daughter was located and found her bleeding and dying.

Defendants argue Plaintiff was not “present” at the scene of the injury producing event, and did not have sensory awareness that decedent was shot. They cite Fife v. Astenius (1991) 232 Cal.App.3d 1090 in support. In Fife, plaintiff’s daughter was the passenger in a truck that collided with another vehicle on the street behind plaintiff’s house. Plaintiffs were at home at the time, heard the crash, and saw debris fly above the wall that separated their yard. (Id. at 1092.) They immediately climbed the wall and discovered their family member. The court held that plaintiffs could not recover under a negligent infliction of emotional distress because they were not present at the accident and aware the family member was injured. (Id. at 1093.)

In opposition, Plaintiff responds that in Fife, the plaintiff’s family member did not slowly die in their presence, but rather was merely injured. However, nothing in Fife suggests that the holding is limited to cases were people are merely injured. Likewise, Plaintiff’s argument analogizing to Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144 here is unavailing. In Ko, the plaintiffs were considered “contemporaneously aware” of injury to their son while viewing the live feed of his nanny camera. Here, Plaintiff does not allege that she viewed the shooting when it occurred, either electronically or in-person. Finally, Plaintiff’s reliance on Wilks v. Hom (1992) 2 Cal.App.4th 1264 is similarly misplaced. There, the plaintiff could be found to have been “sensorially aware” because she experienced the explosion firsthand and knew her daughter was also experiencing the same incident.

Plaintiff does not allege that she witnessed the shooting or was with her daughter when the shooting took place. Instead, like the family in Fife, she was in her own dwelling and reacted to dangerous sounds that she heard outside. (FAC, Attach. L-1.) The fact that she suspected or may have worried for her daughter’s safety does not satisfy the standard explained above. Therefore, Plaintiff has not pled facts that she was contemporaneously present at the scene of the injury producing event (the shooting), at the time it occurred, and was not aware that it is caused injury to the decedent. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 667–68.)

Accordingly, Defendants’ demurrer to the first amended complaint is SUSTAINED without leave to amend.

Defendants shall give notice of the Court’s order and file a proof of service of such.

[1] See Minute Order, 23CMCV00040, August 9, 2023. The Court does not consider any declarations in connection with this demurrer.