Judge: Daniel M. Crowley, Case: 20STCV26641, Date: 2022-12-06 Tentative Ruling
Case Number: 20STCV26641 Hearing Date: December 6, 2022 Dept: 28
Defendant Pita Grill Ventures, Inc.’s Demurrer with Motion to Strike
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On July 15, 2020, Plaintiffs Levon Torosyan (“Levon”), Hovnan Torosyan (“Hovan”) and Anush Torosyan (“Anush”) filed this action against Defendants Pita Grill Ventures, Inc. (“Pita”), Clorder, Inc. (“Clorder”) and Kyle Earl Comrie (“Comrie”) for negligence predicated upon premises liability, assault/battery and intentional infliction of emotional distress.
On July 1, 2022, Plaintiffs filed the FAC.
On October 6, 2022, Plaintiffs filed the SAC for negligence, assault/battery and intentional infliction of emotional distress.
On November 4, 2022, Pita filed a Demurrer to be heard on December 2 2, 2022. On November 21, 2022, Plaintiffs filed an opposition. On November 29, 2022, Pita filed a reply.
There is no currently set trial date.
PARTY’S REQUESTS
Pita requests the Court sustain the demurrer to the first cause of action on the basis that the complaint fails to state a cause of action against Pita, and that the cause of action asserted is uncertain, ambiguous, and unintelligible. Pita also requests the Court strike the request for attorney’s fees.
Plaintiff requests the Court overrule the demurrer or grant leave to amend.
LEGAL STANDARD
CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)
Following the sustaining of a demurrer, with leave to amend, Plaintiff is only allowed to amend the cause of action in the pleading to which the demurrer was sustained; the Plaintiff must obtain permission to add a new cause of action in an amended pleading. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.)
“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. County of San Mateo (1996) 12 Cal.4th 913, 917.) Premises liability relies upon the same elements as negligence.
A land possessor owes no duty to protect against third-party criminal assaults absent prior similar incidents which would give rise to a high degree of foreseeability. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666.) 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. (Id. at 679.)
DISCUSSION
Pita argues that Plaintiffs provide no allegations that would provide that the incident is foreseeable, which is required to establish duty. Plaintiffs do not allege that Comrie had committed prior acts of violence, that Pita was a recurring target of violent attacks or robberies, or any other allegations indicating that the incident was foreseeable. In the absence of such allegations, a cause of action for negligence or premises liability asserted against a property owner for failing to prevent a violent crime is facially deficient. As such, Pita has demonstrated that Plaintiffs have failed to state a cause of action, and the burden shifts to Plaintiffs.
Plaintiffs argue that Plaintiffs’ allegations that Comrie’s order was not fulfilled and that he was angry upon arrival were sufficient to meet the foreseeability requirement. Additionally, Plaintiffs claim that Pita employees stated they were told Comrie had “used profanity and threatened to arrive at the subject premises and forcefully obtain his order.” In the opposition, Plaintiffs phrase this as intent to arrive to the premises with negative intentions. They argue that Pita should have known that Comrie would be upset over this cancelation, come to the subject location, and, upon his arrival, know that the situation would escalate into a violent attack. The Court disagrees; if every restaurant that has ever canceled an order had to anticipate a violent attack from a dissatisfied customer, every restaurant would be required to hire a full-time security guard. The small possibility a disgruntled customer may appear, and the situation may escalate is not sufficient to establish foreseeability under these circumstances. Even if someone threatens to forcefully obtain an order that has otherwise been cancelled or arrives at the premises with negative intentions, this is insufficient to meet the requisite high degree of foreseeability of a violent crime being committed against a customer.
Additionally, Plaintiffs’ argument that upon seeing Comrie’s irritation, Pita were on notice as to an eventual attack lacks sufficient allegations to support such a claim. Plaintiffs provide no allegations that Comrie provided any propensity towards violence prior to brandishing a weapon. As such, Comrie’s actions were not foreseeable. Plaintiffs have not met their burden. The Court will sustain the demurrer. As this is effectively the third time in which Plaintiff has failed to plead facts sufficient to establish a cause of action against Pita, the Court will not grant leave to amend.
As the only cause of action asserted against Pita is subject to demurrer, the motion to strike is moot.
CONCLUSION
Defendant Pita Grill Ventures, Inc.’s Demurrer is SUSTAINED, without leave to amend.
Defendant Pita Grill Ventures, Inc.’s Motion to Strike is DENIED.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.