Judge: Craig Griffin, Case: "Deebes vs. JD Property Management, Inc.", Date: 2023-06-12 Tentative Ruling
1) J.D. Property Management, Inc.
a) Demurrer
Defendant J.D. Property Management, Inc.’s (“JD”) Demurrer to plaintiff Souheil Deebes’ (“Plaintiff”) First Amended Complaint (“FAC”) is OVERRULED in part and SUSTAINED in part.
Overruled as to COA No. 1.
Sustained as to cause of action (“COA”) No. 2.
A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)
“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)
“ ‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’ ” [Citations.] “ ‘A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.’ ” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal. App. 5th 677, 695.)
JD demurs to the first and second COA on the basis that they fail to state facts sufficient to constitute a COA and are uncertain. (Civ. Proc. Code §§ 430.10(e) and (f).)
i) COA No. 1 – Negligence
“The elements of a cause of action for negligence are well established. They are '(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.)
“A defendant does not owe a legal duty to protect against third party conduct, unless there exists a special relationship between the defendant and the plaintiff. [Citation.] In that circumstance, “[i]n addition to the special relationship ..., there must also be evidence showing facts from which the trier of fact could reasonably infer that the [defendant] had prior actual knowledge, and thus must have known, of the offender's assaultive propensities. [Citation.]” [Citation.] In short, the third party's misconduct must be foreseeable to the defendant.” (Doe v. Los Angeles Cnty. Dep't of Child. & Fam. Servs. (2019) 37 Cal. App. 5th 675, 682–83.)
“Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. Accordingly, in Ann M., we recognized as “well established” the proposition that a proprietors “general duty of maintenance, which is owed to tenants and patrons, ... include[s] the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” [Emphasis in original.] (Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 235.)
To the extent that Plaintiff is a resident of the Property which JD owned/operated/managed, that might create a special relationship and thus a legal duty to protect Plaintiff from the foreseeable acts of third parties. The issue becomes whether or not JD had notice of Richard Thomas Beck’s (“Richard” individually) violent propensities prior to the incident.
“[I]n Ann M., we recognized as “well established” the proposition that a proprietors “general duty of maintenance, which is owed to tenants and patrons, ... include[s] the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” [Emphasis in original.] (Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 235.) “Emphasizing that “foreseeability is the crucial factor,” the Court reasoned “that—no matter whether a heightened or lesser degree of foreseeability was required and no matter whether the actual crime committed or only similar conduct needed to be foreseen—foreseeability must be measured by what the defendant actually knew. [No case] has held that a defendant owed a duty to take steps to prevent or respond to third party crime on the basis of constructive knowledge or information the defendant should have known. We are not aware of any case involving liability for third party criminal conduct that has held that a special relationship creates a duty to investigate or that has charged a defendant with making forecasts based on the information such an investigation might have revealed.” (J.L. v. Children's Inst., Inc. (2009) 177 Cal. App. 4th 388, 397.)
Plaintiff appears to be a resident on the Property. (FAC ¶¶ 7.) Plaintiff alleged JD owned, controlled, operated, maintained, inspected, repaired, and managed or delegated management duties related to the Property. (FAC ¶ 2.) Defendant Thomas Beck (“Thomas”) was employed by JD to manage the Property. (FAC ¶¶ 3, 7, 14.) Plaintiff has alleged Richard’s “propensity for violence” and “history of violence.” (FAC ¶¶ 3, 7-8, 12, 17, 23.) Plaintiff has alleged Thomas, as JD’s employee, knew of Richard’s violent propensities. (FAC ¶¶ 3, 7-9, 13, 17-18) Plaintiff alleges complaints were made about Richard’s “criminal acts,” but did not specify who the complaints were made to (JD, Thomas, or other individuals) or what those complaints were. (FAC ¶¶ 7-9, 12.) Plaintiff alleges JD was or should have been aware of the complaints and Richard’s criminal and violent tendencies as JD’s employee Thomas knew about them. (FAC ¶¶ 12, 17-18.) Plaintiff also alleged JD failed to prevent the incident as its employee Thomas only halfheartedly told Richard to leave on multiple occasions and did not actually enforce such action, thereby allowing Richard to roam free on the Property. (FAC ¶ 18.) JD failed to discipline or warn Thomas that he was not to bring his son Richard onto the premises or to let Richard stay on the premises for a prolonged period of time. (FAC ¶ 17.) Although Thomas asked Richard to leave on multiple occasions halfheartedly, he did not enforce such action and effectively allowed Richard to roam free on the Property. (FAC ¶ 18.) JD was allegedly negligent, careless, reckless and unreasonable by allowing a known dangerous individual onto the premises. (FAC ¶ 22.) The acts or omissions of JD were a proximate or substantial factor in Plaintiff being stabbed. (FAC ¶¶ 17, 20.)
While it is unclear if Plaintiff will be able to ultimately prove negligence against JD as there may be some issue pertaining to imputing the knowledge of an employee upon the employer, Plaintiff has pled sufficient facts to support this COA at the pleading stage.
The Demurrer is OVERRULED as to this COA.
ii) COA No. 2 – Negligent Hiring, Supervision, Training, and Retention
““An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]” [Citation.] Negligence liability will be imposed upon the employer if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Delfino v. Agilent Techs., Inc. (2006) 145 Cal. App. 4th 790, 815.) “Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” (Id.)
All of the allegations for this COA in the FAC are essentially identical to those in the original Complaint. Plaintiff has pled no additional facts under this COA.
This COA essentially has four subparts for different negligence. Negligent hiring, negligent supervision, negligent training, and negligent retention.
Regarding negligent hiring, Plaintiff has only alleged Thomas was “unfit” for the position, which is an improper conclusion of law. (Daar, supra, 67 Cal.2d at 672.) Plaintiff has not alleged any facts supporting Thomas being unfit, nor that JD was aware of any issues with Thomas prior to hiring Thomas. Again, Thomas was not the individual who attacked Plaintiff, Richard was and Richard was not employed by JD. There are no allegations that Thomas was dangerous or that JD was aware of such propensities. Plaintiff has not pled sufficient facts to support negligent hiring.
Regarding negligent supervision and retention, Plaintiff again has not alleged any specific issues with Thomas, nor has Plaintiff alleged JD was aware of any issues with Thomas that would require Thomas to be terminated or that Thomas was inadequately supervised. As noted by JD, the relationship between Thomas and Richard is not something that is part of Thomas’s employment duties. Plaintiff has not pled sufficient facts to support negligent supervision or retention.
Regarding negligent training, Plaintiff alleges Thomas was not trained correctly to perform the work for which he was hired (Complaint ¶ 28) and specifically was not trained for dealing with known dangerous individuals on the premises and was not trained for public safety. (Complaint ¶ 29.) As a result of the lack of training, Thomas permitted Richard, a known dangerous individual, onto the property which was the proximate cause of Plaintiff’s injuries. Plaintiff has likely pled sufficient facts on the negligent training subpart of this COA, however as the other three subparts are not properly pled, the Demurrer is SUSTAINED with leave to amend.
b) Motion to Strike
JD’s Motion to Strike portions of the FAC is GRANTED in part and DENIED in part.
Granted as to Prayer Nos. 6-8.
Denied as to exemplary damages.
“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Civ. Proc. Code § 436.)
JD seeks to strike the following items from the FAC Prayer:
“6. For damages of up to three times actual damages but in no case less than four thousand dollars ($4,000) for each plaintiff, pursuant to Civil Code Section 52, subdivision (a), and Treble Damages;
7. For reasonable attorney's fees under statute, according to proof, pursuant to Cal. Civ. Code §52(a);
8. For Punitive and Exemplary Damages under statute pursuant to Civil Code Section 52, subdivision (a) Permitted by Law; and for the Third and Fourth Cause of Action: Assault and Battery.”
JD also seeks to strike, “[a]ny and all other reference to punitive or exemplary damages,” without specifically identifying which paragraphs or sections JD seeks to strike. It appears exemplary damages are requested under COA Nos. 3 and 4, which JD is not a party to, and are only requested against Richard. (FAC ¶¶ 39 (Assault) and 49 (Battery).)
As to Prayer ¶¶ 6-8, Plaintiff has alleged no civil rights that were infringed upon or that Civ. Code § 52 actually applies to the facts of the FAC.
The motion is GRANTED as to these Prayer items.
As to the request to strike any other reference to exemplary damages, those are only under FAC ¶¶ 39 and 49, which are alleged solely as to Richard and “DOES 1-20,” and not as to JD. Richard is alleged to have stabbed Plaintiff twice with a knife, once while in Plaintiff’s home and then a second time in the alley. (FAC ¶ 23.) Intentionally stabbing an individual would fall under the category of “malice” as it is “conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(a)(1).)
The motion is DENIED as to the exemplary damage wording against Richard.
2) Pioneer Equities Corporation
a) Demurrer
Defendant Pioneer Equities Corporation’s (“PEC”) unopposed Demurrer to the FAC is SUSTAINED.
PEC was brought in as DOE No. 1. There are no specific allegations against PEC within the FAC, and it appears based purely upon the “DOES 1 to 20“ statements that PEC is being sued under all of COA. PEC demurs to all six of the COA in the FAC on the basis that they fail to state facts sufficient to constitute a COA and are uncertain. (Civ. Proc. Code §§ 430.10(e) and (f).) Plaintiff did not oppose this demurrer.
As there are literally no facts as to PEC, any duties PEC owed to Plaintiff, any breach of such duties or act/omissions on the part of PEC that caused any harm to Plaintiff, PEC’s demurrer is SUSTAINED in its entirety with leave to amend.
b) Motion to Strike
PEC’s unopposed Motion to Strike is GRANTED.
PEC seeks to strike the same items from the FAC that JD sought to strike, but also includes a request to strike COA No. 5 for negligent infliction of emotional distress (“NIED”).
The motion is GRANTED as to the items in the Prayer for the reasons noted in the JD motion above.
As to the exemplary damage references in FAC ¶¶ 39 and 49, those are alleged against “DOES 1-20,” which would include PEC as it has been designated as DOE 1. However, there are no allegations within COA Nos. 3 and 4 as to actions of assault or battery taken by any of the DOES, nor specifically as to PEC.
The is GRANTED as to the request to strike exemplary damage allegations.
Finally, as the COA No. 5 for NIED, as PEC correctly points out, NIED is not a valid COA in California. “[A]s our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress.” (Lawson v. Mgmt. Activities, Inc. (1999) 69 Cal. App. 4th 652, 656.)
The motion is GRANTED as to COA No. 5.
Plaintiff is given leave to file a second amended complaint within 20-days of the hearing.
JD to give notice.