Judge: Cynthia A Freeland, Case: 37-2023-00032449-CU-PO-NC, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - January 11, 2024

01/12/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00032449-CU-PO-NC KESHISHIAN VS RAZDAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/05/2023

Defendants Majid Razdan ('Majid') and Maria Sonia Razdan ('Maria' and, together with Majid, 'Defendants')'s demurrer to Plaintiffs Aris Keshishian ('Aris'), deceased, by and through his personal/legal representative Henrik Keshishian ('Henrik'), Henrik, and Guyaneh Keshishian ('Guyaneh' and, together with Aris and Henrik, 'Plaintiffs')'s Complaint is overruled.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. '[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.' Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal. App. 4th 1125, 1135. Such demurrers are strictly construed since ambiguities can be clarified during discovery. See Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.

Initially, the court notes that the Complaint alleges three causes of action: (1) an assault/battery claim by Aris against Defendant Kellon Talib Razdan ('Kellon'); (2) a negligence/negligent supervision claim by Plaintiffs against Defendants; and (3) a wrongful death claim by Henrik and Guyena against Kellon and Defendants. Defendants state in their Notice of Demurrer that they are demurring to the entire Complaint on the grounds that the Complaint fails to state facts sufficient to constitute a cause of action against Defendants. However, Defendants' Memorandum of Points and Authorities provides no discussion or analysis as to the first cause of action. As a result, the court is left to conclude that Defendants are demurring to only the second and third causes of action. The court limits its analysis accordingly.

Additionally, to the extent Defendants demur to the Complaint based on uncertainty, the demurrer is overruled as Defendants have not demonstrated that the Complaint is so incomprehensible that they cannot reasonably respond.

The demurrer to the second cause of action for negligence/negligent supervision is overruled. 'To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the Calendar No.: Event ID:  TENTATIVE RULINGS

3016317 CASE NUMBER: CASE TITLE:  KESHISHIAN VS RAZDAN [IMAGED]  37-2023-00032449-CU-PO-NC plaintiff's damages or injuries.' Thomas v. Stenberg (2012) 206 Cal. App. 4th 654, 662.

In this case, Defendants demur to the second cause of action on the grounds that the Complaint fails to state facts sufficient to establish that Defendants owed Plaintiffs a legal duty of care. The court respectfully disagrees. Generally, 'all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.' Brown v. USA Taekwondo (2021) 11 Cal. 5th 204, 209 (citing Cal. Civ. Code § 1714(a); Rowland v. Christian (1968) 69 Cal. 2d 108). However, 'as a general matter, there is no duty to act to protect others from the conduct of third parties.' Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 235 (citing Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, 434-435). Courts have recognized various exceptions to the general 'no-duty-to-protect rule' including where, in relevant part, a 'special relationship' exists between the defendant and a third party. The Second District Court of Appeal has explained: One of the exceptions is that 'a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a 'special relationship' with either the victim or the person who created the harm.' (Brown, supra, 11 Cal.5th at p. 215, 276 Cal.Rptr.3d 434, 483 P.3d 159.) 'A special relationship between the defendant and the victim is one that 'gives the victim a right to expect' protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that 'entails an ability to control [the third party's] conduct.' ' (Id. at p. 216, 276 Cal.Rptr.3d 434, 483 P.3d 159.) Safechuck v. MJJ Productions, Inc. (2023) 94 Cal. App. 5th 675, 691-692. 'The parent-child relationship is an example of a special relationship giving rise to a duty to control.' Regents of University of California v. Sup. Ct. (2018) 4 Cal. 5th 607, 619. In the context of the parent-child relationship, '[a] basic requisite of a duty . . . is the defendant's ability to control the other person's conduct.' Smith v. Freund (2011) 192 Cal. App. 4th 466, 473 (citing Megeff v. Doland (1981) 123 Cal. App. 3d 251, 261. Additionally, 'the foreseeability of the harm is critical to the existence of a duty.' Ibid.

In this case, Defendants argue that the Complaint fails to sufficiently allege that: (1) Defendants had the ability to control Kellon, and (2) the harm Kellon caused Aris was foreseeable. The court respectfully disagrees. As to the issue of control, the Complaint alleges that Defendants are Kellon's parents. See Complaint, ¶¶ 2-3. At the time of the subject incident, Kellon was 20 years old and living with Defendants in San Marcos, CA. Ibid., ¶ 12. Defendants were aware that Kellon was mentally unstable, had previously made numerous threats of violence against others (including Aris), had violent ideologies, and needed anti-depressant medication. Ibid., ¶ 13. Moreover, Defendants knew that Kellon would frequently refuse or fail to take his medication and, in fact, dissuaded Kellon from doing so. Ibid. Furthermore, Defendants permitted Kellon to reside in their home and undertook his custody and care, provided him with food and shelter, and oversaw/regulated/controlled his medications, medical treatment, and conduct. Ibid., ¶ 14. In addition, Defendants had the ability to protect the surrounding community from Kellon's violent conduct yet failed to, inter alia, remove him from their home. Ibid., ¶¶ 20-22. The foregoing sufficiently pleads that Defendants, as Kellon's parents, had the ability to control his conduct to the extent that they could, but chose not to, control his medications and/or control his exposure to the surrounding community.

As to foreseeability, the Complaint alleges that, at the time of the incident, Defendants were aware that Kellon: (1) had an aggressive and violent demeanor as well as a long history of violent tendencies/ ideologies; (2) needed to be on anti-depressant medication (but often refused or failed to take such medication, with Defendants actively encouraging him not to do so in that regard); (3) had made numerous violent threats to individuals in the community in the months and years leading up to the incident (including direct threats against Aris, who was a former high school classmate of Kellon's); and (4) posed a high risk to individuals in his close proximity, particularly when he was not taking his medication. The foregoing sufficiently pleads that Kellon's attack on Aris was reasonably foreseeable.

Defendants, throughout their demurrer, contend that the Complaint does not plead enough facts, i.e., Calendar No.: Event ID:  TENTATIVE RULINGS

3016317 CASE NUMBER: CASE TITLE:  KESHISHIAN VS RAZDAN [IMAGED]  37-2023-00032449-CU-PO-NC the Complaint fails to allege that Kellon relinquished control over his own behavior, that Kellon was never adjudicated mentally ill, that Defendants were never adjudicated to be Kellon's guardian, that Kellon was a prior resident of a mental facility, and/or that it was foreseeable that Kellon would commit the specific crime of murder. However, Defendants cite no authority for the proposition that Plaintiffs' negligence/negligent supervision claim is subject to the same heightened pleading requirements as, say, a cause of action for intentional or negligent misrepresentation.

Accordingly, the court overrules the demurrer to the second cause of action for negligence/negligent supervision.

The demurrer to the third cause of action for wrongful death is overruled. Defendants argue that Plaintiff's wrongful death claim is not an independent cause of action and is duplicative of their negligence/negligent supervision claim. The court respectfully disagrees. Under California law, '[a] cause of action for wrongful death is an entirely new and independent cause of action created in the heirs of personal representatives of the deceased, distinct from any action the deceased might have maintained if he or she had survived.' Kincaid v. Kincaid (2011) 197 Cal. App. 4th 75, 80 (citing Fitch v. Select Products Co. (2005) 36 Cal. 4th 812, 819). Moreover, while there are clear overlaps between the second and third causes of action, the court does not find that the two claims are duplicative. The second cause of action alleges that Defendants, by virtue of their special relationship with Kellon, breached a legal duty of care by, inter alia, failing to protect against the foreseeable risk of harm that Kellon posed to others within the community (including Aris) – particularly when he was not taking his anti-depressant medication – which resulted in Aris's death. The third cause of action is brought by Henrik and Guyena and alleges that, as a result of Defendants' and Kellon's intentional, negligent, wrongful, and tortious conduct, Henrik and Guyena have suffered severe loss and have been forever deprived of Aris's love, care, comfort, society, emotional support, and guidance. See Complaint, ¶ 29.

Henrik and Guyena may allege such a cause of action separate and apart from the negligence/negligent supervision claim. See, e.g., Jacoves v. United Merchandising Corp. (1992) 9 Cal. App. 4th 88, 105 ('Wrongful death is a statutorily created cause of action for pecuniary loss brought by heirs against a person who causes the death of another by a wrongful act or neglect.'). Furthermore, the court finds that Henrik's and Guyena's wrongful death claim is sufficiently pled because, as set forth above, the negligence/negligent supervision claim is sufficiently pled. See, e.g., Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917 ('In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence.').

Accordingly, the court overrules the demurrer to the third cause of action for wrongful death.

Finally, to the extent Defendants demur to the Complaint on the grounds that Aris lacks standing to sue, the demurrer is overruled. The caption of the Complaint makes clear that Aris is not suing in his individual capacity; rather, his claims are being brought by and through his personal legal representative, Henrik. California law is clear that a decedent may bring survivor claims through a personal/legal representative. See Cal. Code Civ. P. §§ 337.34(b), 377.30. Defendants seem to abandon their argument in their reply brief, noting simply that '[a]lthough the decedent is not a proper plaintiff in a wrongful death action, Plaintiffs have corrected the defect in the complaint by substituting his parents as plaintiffs.' See Defendants' Reply, p. 5, ll. 19-20.

Accordingly, the court overrules the demurrer to the extent that Defendants have alleged a lack of standing.

In light of the foregoing, the court overrules the demurrer. Defendants shall file and serve an answer or otherwise plead to the Complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(j).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 12, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 12, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this Calendar No.: Event ID:  TENTATIVE RULINGS

3016317 CASE NUMBER: CASE TITLE:  KESHISHIAN VS RAZDAN [IMAGED]  37-2023-00032449-CU-PO-NC notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3016317