Judge Jill Feeney, Case Number: 23STCV03048, Date: 2024-04-05 Tentative Ruling

This is an action for negligence, negligent hiring, supervision and retention, assault, battery, intentional infliction of emotional distress, negligence and premises liability. Plaintiffs allege that, in the early morning hours of February 12, 2022, they were shot and injured by Doe Defendants at the “Subject Location,” which the complaint defines as “inside, at, near, or on the sidewalk, street, and/or property adjacent to near 401 North La Cienega Boulevard, Los Angeles County, California 90048.” The complaint alleges Moving Defendants owned, operated, managed, and controlled the Subject Location, including a restaurant/lounge on the property. At the time of the shooting, an “after-party” was taking place at the restaurant/lounge. The complaint alleges Moving Defendants anticipated or should have reasonably anticipated that criminal conduct, including gun violence, would take place during the after-party.

On February 10, 2023, Plaintiffs Mark Schaefer and Adam Rahman filed this action against Defendants The Nice Guy, LLC, The Hwood Group, LLC, Justin Bieber, Bill K. Kapri aka Kodak Black aka Dieuson Octave, Revolve Group, Inc., Leslie A. Glick, Leslie Glick 2021 Irrevocable Gift Trust, City of Los Angeles, City of West Hollywood, County of Los Angeles, and Does 1-20

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. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

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., section 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., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the 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.)

“[W]hile negligence is ordinarily a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1096.) Whether one owes a duty to another must be decided on a case-by-case basis. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46.) Every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being harmed as a result of their conduct. (Id.)

Civ. Code, section 1714(a) provides that everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

Here, the FAC alleges that on February 12, 2022, Plaintiffs were severely injured during a violent incident at a restaurant, “The Nice Guy,” in Los Angeles, California, where Defendant Bieber was hosting an after party. (FAC ¶¶19, 24.) The restaurant is owned and operated by Movants and other entities. (FAC ¶21.) Defendants’ promotion and marketing of the event attracted more people than the venue’s capacity, causing people to occupy the sidewalk, street, and properties adjacent to the restaurant. (Id.) Defendants anticipated or should have anticipated that criminal conduct, including gun violence, in the area would take place during the event. (FAC ¶22.) Defendants should have known that Defendant Kodak Black was involved in an altercation during the event. (Id.) Defendants knew or should have known that Defendant Kodak Black was involved in an altercation during the event that further increased the risk and foreseeability of violent conduct. (Id.) Although Defendants undertook to provide security for the event, Defendants failed to exercise reasonable care in the rendering of these services, instigated violence, escalated the violence of others, and failed to use reasonable care rendering security services. (FAC ¶23.) The violence moved from within the restaurant to a broader area around the restaurant. (FAC ¶24.) Defendants entered into contracts with each other to provide security for the protection of patrons, onlookers, and passersby, including Plaintiffs, during the event. (FAC ¶30b.)

Businesses such as shopping centers, restaurants, and bars have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control, against reasonably foreseeable criminal acts of third parties. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249. “A proprietor’s general duty of maintenance, which is owed to tenants and patrons, includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Id. at p. 236.) “Duty in such circumstances is determined by a balancing of foreseeability of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures.” (Id. at p. 238.) Due to the high social costs of imposing a duty on landowners to hire private police forces, “a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards.” (Ibid.) This “requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises.” (Ibid; see also Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1149-1150 [finding a heightened standard necessary due to the difficulty or impossibility of predicting when a criminal will strike, and the difficulty of removing all means available to a criminal intent on a particular victim or goal].)

Here, the FAC alleges that Plaintiffs were passersby. There are no facts that there had been prior incidents of violence on or around the premises, that Movants knew guests were armed, that Movants’ employees had previously instigated violence at events, or any other facts which would suggest that the alleged shooting was foreseeable. The FAC at most alleges that the restaurant was overcrowded, an unspecified violent confrontation began inside the restaurant, the confrontation was instigated by Movants’ employees, the confrontation moved out of the restaurant to the surrounding area, and Plaintiffs were injured as they passed by the restaurant. There are no facts to suggest that the shooter was a known threat or that the shooting was foreseeable.

Even if Defendants marketed the event in a manner which invited more guests to attend than the venue could hold, it would not be reasonable to infer that the shooting was foreseeable due to overcrowding alone. Although other injuries may be foreseeable due to overcrowding, the facts are insufficient to show how a shooting was a foreseeable danger of the overcrowding.

Additionally, even if the violence was instigated by Movants’ employees, the facts do not show that the employees were known to be violent or that instigating the violence fell within the scope of their employment. Although employers are vicariously liable for the torts of their employees, employers are not liable for employees’ acts committed outside the scope of their employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 301.) Here, there are no facts describing how Movants’ employees instigated the alleged violence or that the employees instigated the violence while acting within the scope of their employment.

Plaintiffs, citing Saffro v. Elite Racing, Inc. (2002) 98 Cal. App. 4th 173, 179, argue that because Movants organized an event that presented a foreseeable risk of injury, Movants were duty bound to organize the event in a reasonably safe manner. However, Saffro concerned the doctrine of primary assumption of the risk. There, a marathon organizer had a duty to take reasonable steps to minimize the risk of harm inherent in marathon running without altering the nature of the sport, including providing sufficient water and electrolyte replacement drinks. Here, unlike Saffro, Movants’ event was an after party hosted in a restaurant that would not have presented an inherent risk of harm. The FAC contains no facts that there were any inherent risks to this event that would have imposed a duty on Movants to protect Plaintiffs and other passersby from a violence. Additionally, there are no facts to suggest the alleged shooting which injured Plaintiffs was foreseeable.

A special relationship may arise out of a voluntary assumption of a duty upon which a person reasonably relies. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1203.) If a special relationship arises out of a contractual duty, the duty is owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract. (Id.) A special relationship arises by contract only if the contract itself imposes a duty to protect. (McHenry v. Asylum Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 485–486.) Such a special relationship requires a specific promise in the contract to provide specific protection. (Bom v. Superior Court (2020) 44 Cal.App.5th 1, 16.)

A volunteer who, having no initial duty to do so, undertakes to provide protective services to another, will be found to have a duty to exercise due care in the performance of that undertaking if either (a) the volunteer’s failure to exercise such care increases the risk of harm to the other person or (b) the other person reasonably relies on the volunteer’s undertaking and suffers injury as a result. (Delgado, supra, 36 Cal.4th at p. 249.) The scope of the duty depends upon the nature of the undertaking. (Id.) Merely because an enterprise chooses to have security does not mean that the enterprise assumed a duty to protect invitees from third party violence. (Id.) Even if a duty is established, foreseeability remains relevant to the factfinder’s determination of breach and causation. (Id. at p. 250.)

Here, the FAC alleges that Defendants entered into contracts with each other to provide security for the protection of patrons, onlookers, and passersby. (FAC ¶30b.) Although the FAC states Defendants entered into this contract in anticipation of gun violence at the event, there are no facts showing the contract imposed a duty to protect passersby from gun violence. (Id.) The FAC also alleges that Defendants had a duty to provide adequate security, not to escalate violence, to de-escalate violence, and to protect Plaintiffs from the harm they suffered. (FAC ¶32(a)(iv).) However, this is a legal conclusion unsupported by facts.

Again, there are no facts to show that gun violence in or around the restaurant was foreseeable. Because the FAC does not allege that there was a risk of violence in and around the restaurant, there are no facts showing that Plaintiffs’ risk of harm would have increased if Movants failed to exercise due care in providing security. Although Plaintiffs allege that they relied on express and implied representations that Defendants would provide security at the venue, this statement is again conclusory and unsupported by facts. (FAC ¶30a.) Rather, the FAC alleges Plaintiffs were passersby and that Defendants contracted with each other to provide security. It would not be reasonable to infer from these facts that Plaintiffs knew as they passed the venue that Movants intended their security guards to protect passersby and onlookers. There are no facts that Plaintiffs knew in advance about security at the venue or that they approached the venue because they knew they would be protected. Thus, Plaintiffs could not have reasonably relied on Movants’ undertaking to provide security at the venue. Therefore, Movants did not owe a duty of due care to provide security despite volunteering to provide private security.

Even if Movants volunteered to provide security, foreseeability is still important to other elements of negligence, including breach and causation. As discussed above, the FAC fails to allege facts showing the alleged shooting was foreseeable. Even if, as the FAC alleges, Movants had a duty to protect Plaintiffs and the security guards Movants hired were incompetent to provide security services, there are no facts that the alleged shooting was foreseeable. Because the facts fail to show the shooting was foreseeable, the FAC fails to state that Movants’ conduct caused Plaintiffs’ injuries.

Plaintiffs cite Rowland v. Christian (1968) 69 Cal. 2d 108, 112 and argue that there is no public policy exception to Movants’ duty of care. However, Rowland only applies in situations that justify a departure from Civ. Code, section 1714. In Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, the Supreme Court summarized the so-called Rowland factors: “In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714.” Here, there are no facts which would justify a departure from the duty of care set forth in Civ. Code, section 1714. Accordingly, Rowland does not apply here.

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)

Section 12.14 concerns permitted uses of buildings. Subdivision (b)(3) of this section provides that “all activities, other than incidental storage and outdoor eating areas for ground floor restaurants, shall be conducted wholly within a completely enclosed building.” Section 57.1004.10 similarly provides that “no manager or person in control of any assembly occupancy or premises shall allow an overcrowded condition to exist in that assembly occupancy or premises.”

Section 103.111 provides that “[n]o person shall conduct, manage or sponsor any Parade or Assembly without a written permit from the Board. No person shall participate in any Parade or Assembly with the knowledge that its sponsor has not been issued the required permit.” Here, there are no facts that Movants’ failure to obtain a permit for the event caused Plaintiffs’ injuries or that the section was intended to prevent incidents of gun violence.

Sections 407 and 408 provide that “whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly” and that “every person who participates in any rout or unlawful assembly is guilty of a misdemeanor.” Here, there are no facts showing the assembly of people at Movants’ restaurant caused Plaintiffs’ injuries. Rather, an unidentified third party within the restaurant began an altercation which moved outside the restaurant and injured Plaintiffs. Based on these facts, the assembly itself did not cause Plaintiffs’ injuries.

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee…Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (McKenna v. Beesley (2021) 67 Cal.App.5th 552.) To be liable for negligent supervision, there must be a connection between the employment and injury to a third person. (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Id. at p. 1339.) Failing to require a connection between the employment and the injured party would result in the employer becoming an insurer of the safety of every person with whom the employees come into contact, regardless of their relationship to the employer (Id at p.1341.)

Here, the FAC alleges that the security personnel hired were unfit to perform security work, did not act reasonably as a security professional would, failed to refrain from violence, failed to de-escalate violence, and negligently jeopardized Plaintiffs’ safety. (FAC ¶41.) However, these are again conclusory statements. The FAC fails to state facts showing how Movants knew the security personnel had characteristics which would pose a danger to Plaintiffs, that hiring them would create a particular risk that violence would break out in the venue, and that violence did break out as a result of the unfitness of the security personnel. Therefore, the FAC fails to state facts sufficient to support a cause of action for negligent hiring.

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance of damage inflicted upon individuals may be unequal.” (Civ. Code, section 3480; see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.) “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, section 3493; see Birke, supra, 169 Cal.App.4th at 1548.)

Here, the FAC states Civ. Code, section 3479 provides that “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (FAC ¶94.) Defendants created a condition that was harmful to health, indecent and offensive to the senses, and that obstructed the free passage and use of the public streets and sidewalks. (FAC ¶97.)

The FAC fails to describe what condition or obstruction Movants created which would constitute a nuisance under Civ. Code, section 3479. Rather, the FAC contains a conclusory allegation unsupported by facts. Although the FAC alleges the venue was overcrowded and the event spilled into the surrounding area, the facts are insufficient to show this overcrowding was a nuisance under Civ. Code, section 3479.