Judge Jill Feeney, Case 22STCV04846 2022-09-30 Tentative Ruling

On February 8, 2022, Plaintiff Sabrina Pareja (“Plaintiff”) filed a Complaint alleging causes of action for assault, battery, intentional infliction of emotional distress, and negligence. Plaintiff asserted assault, battery, and intentional infliction of emotional distress against Defendant Richard David Phillippi. Plaintiff alleged the cause of action for negligence against Defendant Richard David Phillippi and Defendant Lane 4 Backstroker.

Defendant argues that the amendments in Plaintiff’s FAC fail to allege facts that impose a duty on Defendant. Defendant alleges that the new paragraph in the FAC alleging Defendant was aware of Phillippi’s violent propensity and aggressive behavior fails to describe the prior incidents that were allegedly reported to Defendant.

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).) As is relevant here, a party may object to a pleading through a demurrer arguing “the pleading does not state facts sufficient to constitute a cause of action.” (CCP § 430.10(e).) 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, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., §§ 430.41 (a)(4).)

Defendant’s counsel met and conferred with Plaintiff’s counsel regarding the FAC on July 20, 2022. (Young Decl., ¶3.) Defendant’s counsel explained the FAC still did not allege sufficient facts to state a negligence cause of action against Defendant. (Id.) Plaintiff’s counsel stated he would file a Second Amended Complaint. (Id.) After no amended complaint was filed, Defendant’s counsel contacted Plaintiff’s counsel again via email and offered to stipulate to the filing of a second amendment complaint. (Id., ¶4.) Plaintiff’s counsel did not respond to Defendant’s counsel’s email. (Id., ¶5.)

Defendant demurs to Plaintiff’s Complaint on the grounds that the facts alleged do not constitute a cause of action for negligence because Plaintiff cannot establish that Defendant owed or breached a duty to Plaintiff and further, cannot establish that Defendant’s acts or omissions were the actual and legal cause of Plaintiff’s injuries.

proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.” (Id. p. 645.)

A defendant has a “duty to take reasonable steps to secure common areas against the foreseeable criminal acts of third parties that would likely occur in the absence of such precautionary measures.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [disapproved of on other grounds].) However, a defendant has this duty only if it knows of prior criminal acts or conditions that would have put it on notice of potential wrongdoing by a third party. (Id. at p. 679.) The foreseeability of such wrongdoing must be supported by evidence. (See Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1150 [“we conclude defendants owed no duty to plaintiffs because Abrams's brutal criminal act was unforeseeable… No evidence indicated defendants' childcare facility had ever been the target of violence in the past and no hint existed that either defendants or any other similar business establishment had ever been the target of any criminal acts.”].) The existence of a duty is a question to be determined by the court. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 [disapproved of on other grounds].)

Plaintiff’s FAC alleges that Defendant managed, owned, maintained, operated, controlled, and safeguarded the premises where Phillippi was a tenant. (FAC ¶ 4.) The Complaint further alleges that Defendant had an affirmative legal duty to use due care for the protection of Plaintiff against unreasonable risk of harm. (Id. at ¶ 33.) Defendant formed a special relationship resulting in the affirmative duty to take all reasonable steps to protect the occupants of the subject premises. (Id. at ¶ 34.) Defendant had a duty to control Phillippi and protect Plaintiff from physical and mental harm. (Id. at ¶ 35.) Defendant breached its duty of care when Phillippi tackled and knocked Plaintiff to the ground and caused injuries. (Id. at ¶ 36.) As a direct result of the breach of its affirmative duty to protect Plaintiff from physical or psychological injury while at the subject premises, Defendant was the proximate or legal cause of Plaintiff’s injuries. (Id. at ¶ 38.) Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (Id. at ¶ 39.) Plaintiff was physically and psychologically damaged as a result of Defendant’s conduct. (Id. at ¶ 41.)

“37. Defendants LANE 4 BACKSTROKER, A CALIFORNIA LIMITED PARTNERSHIP; and DOES 1 TO 100, inclusive, were aware, notified and/or on notice of Defendant RICHARD DAVID PHILLIPPI’s violent propensity and aggressive behavior. Said behavior and actions were reported to Defendants LANE 4 BACKSTROKER, A CALIFORNIA LIMITED PARTNERSHIP; and DOES 1 TO 100, inclusive, by Plaintiff and other residents and/or tenants and/or visitors prior to the incident which is the subject of this action.”

For purposes of a demurrer, these allegations are sufficient with respect to the issue of foreseeability. Plaintiff alleges that Defendant Phillipi’s aggressive behavior was previously reported to Defendant Lane 4. Discovery will reveal details of these previous reports. Although ultimately, there may not be a viable cause of action for negligence, the Court cannot state that as a matter of law there is no cause of action given the pleadings here.