Judge: Elaine W. Mandel, Case: 23SMCV00693, Date: 2023-08-31 Tentative Ruling

Case Number: 23SMCV00693    Hearing Date: October 19, 2023    Dept: P

Tentative Ruling

Shawhan, et al. v. Il Pastaio Inc., Case No. 23SMCV00693

Hearing Date October 19, 2023

Defendants Il Pastaio’s Demurrer to Plaintiffs’ First Amended Complaint

Plaintiffs were shot by unknown assailants while dining at defendant Il Pastaio and allege defendants failed to keep the premises safe. On August 31, 2023 the court sustained a demurrer to the battery and negligence claims with leave to amend. Defendants Il Pastaio and Moeini now demur to amended claims in the first amended complaint.

Battery

The battery cause of action is alleged only against Does 6 to 100. As demurring defendants are not named, the demurrer is MOOT.

Negligence

For purposes of negligence liability, a landlord has a duty to take reasonable precautions to protect patrons from highly foreseeable third-party crimes. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679. Though foreseeability can be proven through prior similar incidents, they are not necessary. Absent prior similar incidents, a duty of care can be shown with other factors such as “the nature, condition, and location” of the premises.

Defendants argue the negligence claim fails because plaintiffs have not alleged prior similar incidents, so fail to establish a duty of care. Under Ann M., prior similar incidents are not the only way to show a duty of care.

Plaintiffs allege “the Premises had a history of criminal activity,” and defendants had “actual and constructive knowledge that the Premises was the scene of actual and potentially violent, life-threatening, dangerous, illegal, and/or destructive incidents[.]” Complaint ¶22. For pleading purposes, this sufficiently alleges the attack was “highly foreseeable.” OVERRULED. Defendants to answer within 10 court days.