Judge: Frank M. Tavelman, Case: 23BBCV01897, Date: 2024-05-31 Tentative Ruling

Case Number: 23BBCV01897    Hearing Date: May 31, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Zachary Purnell (Plaintiff) brings this action against 55 Silver, LLC (55 Silver), Kiloby Center for Recovery, Inc. (Kiloby), 9 Silver, LLC (9 Silver), and Nathan Young (Young) (collectively Defendants). Plaintiff states that he was a resident of a sober living home located at Hatteras St., North Hollywood, California (the Property). which owned and operated Defendants 55 Silver and Kiloby (Compl. ¶¶ 2-6.) Young is alleged to be the owner/operator of 55 Silver, 9 Silver, and Kiloby. (Compl. ¶ 8.) On December 28, 2023, Defendant 9 Silver was added by amended to correct fictitious name. It appears that Plaintiff alleges 9 Silver was also an owner/operator of the facility. (Compl. ¶ 11.) Plaintiff alleges he was attacked by a third-party as a result of Defendants’ negligence.

The Complaint contains two causes of action for (1) Negligence and (2) Premises Liability.

9 Silver and Young (hereinafter Demurring Defendants) now demur to each cause of action stated against them, arguing that they fail to allege sufficient facts. Plaintiff opposes the motion.  

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Torres-Brito Decl. ¶ 6.) 

Facts

On July 11, 2023, Plaintiff alleges he was attacked by a neighbor to the Property. (Compl. ¶ 4.) Plaintiff further alleges that this neighbor “often caused trouble” at the Property. (Compl. ¶ 3.) Plaintiff does not identify this neighbor in his Complaint and provides no further factual allegations as to the circumstances surrounding the attack.

First COA – Negligence – Sustained with Leave to Amend

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.)

“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) “One well-established limit is that there is no duty to act to protect others from the conduct of third parties.” (Williams supra, 37 Cal.App.5th at 663 [internal quotation marks omitted].)

There exists an exception to this limit where a party has shown a special relationship between the injured party and the landowner. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.) “Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. In addition, such “special relationships triggering a duty to protect another from foreseeable injury caused by a third party have been found in other contexts, including those of (i) common carriers and passengers, (ii) innkeepers and their guests, and (iii) mental health professionals and their patients.” (Id. [internal quotation marks and citations omitted].)

Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) In determining the scope of property owner’s duty to protect from third-party harm the Court looks at “…the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” (Ann M. supra, 6 Cal.4th 666 at 675.)

As Plaintiff’s cause of action stems from the criminal actions of a third-party, he must allege facts supporting that a special relationship existed between himself and Demurring Defendants. The Court finds the allegations that Young and 9 Silver owned and operated the sober living home in which Plaintiff resided are sufficient to establish such a relationship.

Plaintiff must also show that the actions of the third-party were foreseeable by Demurring Defendants. In this respect, the Court finds the Complaint insufficient. The only fact in the Complaint that could be construed as speaking to foreseeability is that the neighbor “often caused trouble”. (Compl. ¶3.) This allegation says nothing about the knowledge of Demurring Defendants of the neighbor having caused trouble. It also says nothing about the type of trouble caused and whether this trouble in any way indicated the neighbor posed a threat of physical violence to residents of the Property.

Further, Plaintiff’s argument that this demurrer asks the Court to weigh facts as to foreseeability is unpersuasive. Demurrers for sufficiency are inherently concerned with whether facts are pled in a Complaint. Demurring Defendants are not asking the Court to weigh the facts, they are asking the Court to consider whether Plaintiff has pled any. Here, the Complaint is bereft of any facts speaking to the foreseeability of third-party violence by Demurring Defendants.

Accordingly, the demurrer to this cause of action is SUSTAINED with 20 days’ leave to amend.

Second COA – Premises Liability – Sustained with Leave to Amend

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

Plaintiff’s allegations here as to duty and breach are identical to those in his cause of action for negligence. As Plaintiff has not pleaded allegations sufficient to support his claim that Demurring Defendants owed him a duty, his cause of action for Premises Liability is also subject to demurrer on these grounds.

As with the previous cause of action, the demurrer to this cause of action is SUSTAINED with 20 days’ leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

9 Silver, LLC & Nathan Young’s Demurrer came on regularly for hearing on May 31, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE FIRST CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE DEMURRER TO THE SECOND CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT YOUNG TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  May 31, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles