Judge: Douglas W. Stern, Case: 22STCV26299, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV26299    Hearing Date: October 12, 2023    Dept: 68

DEFENDANTS NIKE, INC. AND NIKE USA, INC.’s  DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 

BACKGROUND –

Plaintiff Jessica Bradford (“Plaintiff”) is the mother of Jayden Bradford (“Decedent”), who was shot and killed while at a Nike shoe release event at the store of Defendant Shoe Palace (Shoe Palace). Jayden was an employee of Shoe Palace; however, Plaintiff’s SAC alleges that he was off duty at the time he was shot. (SAC, ¶ 17.) Plaintiff has alleged 6 causes of action against Defendants Nike and Nike USA (collectively Nike) and Shoe Palace. The causes of action which Plaintiff has alleged are:

1.      Wrongful Death (Negligence)

2.      Wrongful Death (Premises Liability)

3.      Wrongful Death (Negligence)

4.      Wrongful Death (Battery)

5.      Wrongful Death (Negligence)

6.      Survival Action

Plaintiff alleges two causes of action – three and six – against Nike, and Nike filed the instant Demurrer on August 28, 2023, demurring to the same two. Plaintiff filed her opposition (“Opposition Papers”) on September 29, 2023. Nike filed a reply (“Reply Papers”) on September 29, 2023.    

Moving Party Arguments –

Nike files their Demurrer arguing that that shooting occurred on property owned by Shoe Palace, not Nike. Additionally, Plaintiff failed to establish either a special relationship or misfeasance by Nike sufficient to trigger a legal duty to protect Decedent.

Responding Party Arguments –

Plaintiff argues that they have alleged sufficient facts to show negligent undertaking on the part of Nike.

Upon Reply, Moving Party Arguments –

Plaintiff’s argument of negligent undertaking fails because there is no duty to protect a victim from the actions of third parties without establishing malfeasance or a special relationship.

TENTATIVE RULING: RE NIKE’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT, THE COURT RULES AS FOLLOWS:
SUSTAINED WITHOUT LEAVE TO AMEND

Preliminary Matters –

Request for Judicial Notice

Nike requests this Court take judicial notice of Plaintiff’s First Amended Complaint filed on March 17, 2023. It is not necessary to request that the Court take judicial notice of the operative complaint for purposes of addressing a demurrer.  Hence, while the Court obviously looks to the allegations of that complaint, it is not granting the request.

Evidentiary Objections

Plaintiff objects to the Declaration of Stephanie Jones Nojima submitted concurrently with Defendant’s Demurrer. The objection is sustained.  The Court shall not consider extraneous evidence in deciding this demurrer.

Discussion –

Legal Standard for Demurrer

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Analysis

Plaintiff uses their SAC to allege negligent undertaking against Nike for the death of Decedent. However, the wrongful death action against Nike is based on negligence, and the threshold element of negligence is duty. Plaintiffs have failed to establish any such duty, therefore for the reasons below, the Demurrer is sustained without leave to amend.

(1)   Third Cause of Action – Negligence (Wrongful Death)

“The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) 

Plaintiff argues in their SAC that they have alleged all of the elements of a negligent undertaking theory. Plaintiff cites Paz v. State of California (2000) 22 Cal.4th 550, 559 (Paz) as instructive. Paz lays out the elements necessary for negligent undertaking, but the Court was also careful to note that the theory of negligent undertaking “subsumes the well-known elements of any negligence action, viz., duty, breach of duty, proximate cause, and damages.” (Paz, supra at 559.) Here, there must be some duty by Nike owed to Decedent, there is no way around it.
 

a)      Duty

A legal duty may flow through one of two avenues, from affirmative acts “where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person. In such cases the question of duty is governed by the standards of ordinary care.” (Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209.) However, the second avenue, nonfeasance, generally does not give rise to a legal duty. (Id.) Even within nonfeasance though, a recognized exception to the general rule is the existence of a special relationship. “A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224.)

Plaintiff does not allege the second avenue – a special relationship between Nike and Decedent in the SAC – but does allege the first avenue, misfeasance. The SAC alleges that Nike is aware of the phenomenon of “sneaker violence”, acts of violence committed in order to obtain highly valuable sneakers, and has done nothing to curb the issue. (SAC, ¶ 19 and 25.) Plaintiff further alleges that on the day of Decedent’s death, Nike should have been aware of the widely reported history of violent conduct by patrons at sneaker release raffles, and that holding the raffle would create an unreasonable risk of harm to Decedent. (SAC, ¶ 46.)

Nike counters in their Demurrer arguing that (1) Nike does not own the property where the shooting occurred and (2) that Nike was not involved in Shoe Palace’s operations nor the raffle in question. (Demurrer, 1:3-19.) Plaintiff is silent as to these points in their Opposition Papers. Moreover, Nike relies on Jane Doe No. 1 v. Uber Technologies, Inc. (2022) 79 Cal.App.5th 410, 427 (“Uber Technologies, Inc.”): “The ‘crux of the difference between’ misfeasance and nonfeasance for purposes of assessing a duty to protect is whether the third-party conduct “ ‘was a necessary component’ of the [defendant's] conduct at issue.” The Uber Technologies, Inc. Court gave the following example: “…it is entirely foreseeable that teenagers at an all-night rave party might use drugs and/or stay up all night, then attempt to drive home. Because doing so is not a “necessary component” of attending such a party, however, Sakiyama concluded the party did not create a risk thereof, and the party venue had no duty to protect against it.” (Ibid.) Here too, the Court can analogize. Assuming arguendo, that Nike did require Shoe Palace to organize a raffle, the murder of Decedent was not a necessary component of the raffle, nor was the accompanying violence. Therefore, Nike had not duty to protect against it.

(2)   Sixth Cause of Action – Survival Action

The other cause of action being demurred to is the survival action. The Court notes here that “The survival statutes do not create a cause of action. Rather, “[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.) As such, the cause of action is derivative of the wrongful death action, which fell to demurrer. Therefore, the Demurrer to the sixth cause of action is sustained. 

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]. This is the second amended complaint submitted by Plaintiff. The Court does not see any reasonable possibility of successful amendment; therefore, the Court will deny leave to amend.

Conclusion –

Accordingly, Nike’s Demurrer is SUSTAINED in its entirety, and leave to amend is DENIED.