Judge Elaine W. Mandel, Case Number: 23SMCV00779, Date: 2024-04-25 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV00779, Date: 2024-04-25 Tentative Ruling

Case Number: 23SMCV00779 Hearing Date: April 25, 2024 Dept: P

Tentative Ruling

O’Dell v. Powell, et al. Case No. 23SMCV00779

Hearing Date: April 25, 2024

Defendants Il Pastaio’s Demurrer to Plaintiff’s Complaint

Plaintiff was shot by unknown assailants while dining at defendant Il Pastaio and alleges defendants failed to keep the premises safe. Defendants Il Pastaio and Drago demurrer to the third and fifth causes of action for negligence and negligent infliction of emotional distress. No opposition was filed.

Negligence

To state a claim for negligence, a party must allege (1) duty, (2) breach, and (3) causation. CACI 400, see, e.g. McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671. 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. Foreseeability can be proven through similar past incidents, but they are not required. 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. Per Ann M., prior similar incidents are not the only way to establish a duty of care.

Plaintiff alleges “In the six years prior to the robbery at the Premises,” defendants had “over 300 calls to the premises by law enforcement,” which included “disturbances for fighting, robbery, battery, grand theft, petty theft, assault, and keeping the peace, among others.” Complaint ¶25. The complaint further alleges defendants had “sufficient knowledge of the dangerous condition of the Premises and the potential hazards to restaurant[.]” Id. ¶26. For pleading purposes, this sufficiently alleges the attack was “highly foreseeable.” OVERRULED.

Negligent Infliction of Emotional Distress (NIED)

“The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” Spates v. Dameron Hosp. Ass’n. (2003) 114 Cal.App.4th 208, 213.

Defendants contend the NIED claim repackages the negligence cause of action and focuses on emotional distress rather than physical injury damages.

The complaint alleges plaintiff was lawfully on the premises when she was robbed. Complaint ¶¶ 33-34. Plaintiff further alleges that as a result of the robbery, she fractured her shoulder and suffered pain in her spine. Id. ¶ 36. This is sufficient to state a cause of action at the pleadings stage. OVERRULED. Defendants to answer within 10 court days.