Judge: Joel R Wohlfeil, Case: 37-2022-00052542-CU-PO-CTL, Date: 2023-08-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 29, 2023

08/31/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00052542-CU-PO-CTL CASTILLO VS BARREIRO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/28/2023

1. The general Demurrer (ROA # 36) of Defendants CARLOS BARREIRO and TANYA SAIS ('Defendants' or 'Homeowners') to the Second Amended Complaint ('SAC'), and each cause of action contained therein, by Plaintiffs Samantha Castillo, Jonathan Castillo and Jesus Castillo, by and through his Guardian Ad Litem Yoal Martinez ('Plaintiffs'), is OVERRULED.

This ruling is based on the analysis set forth below.

1st COA: General Negligence The elements of a cause of action for negligence are duty, breach, causation, and damages. Melton v. Boustred (2010) 183 Cal. App. 4th 521, 529.

Duty may be imposed by law, be assumed by Defendant, or exist by virtue of a special relationship. Id. Generally speaking, a landowner has a duty to act reasonably in the management of property in view of the probability of injury to others. Id. at 530.

When analyzing duty in the context of third-party acts, the Court distinguishes between 'misfeasance' and 'nonfeasance.' Id. 531.

Misfeasance exists when Defendant is responsible for making Plaintiff's position worse, i.e., Defendant has created a risk. Id. Conversely, nonfeasance is found when Defendant has failed to aid Plaintiff through beneficial intervention. Id. A legal duty may arise from affirmative acts where Defendant, through his or her own action (misfeasance) has made Plaintiff's position worse and has created a foreseeable risk of harm from the third person. Id. In such cases the question of duty is governed by the standards of ordinary care. Id. By contrast, nonfeasance generally does not give rise to a legal duty. Id. The underlying premise is that a person should not be liable for nonfeasance in failing to act as a 'good Calendar No.: Event ID:  TENTATIVE RULINGS

3002588 CASE NUMBER: CASE TITLE:  CASTILLO VS BARREIRO [IMAGED]  37-2022-00052542-CU-PO-CTL Samaritan.' Id. In other words, one who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from the acts of a third party. Id. Thus, absent misfeasance, as a general matter, there is no duty to act to protect others from the conduct of third parties. Id. Even in the case of nonfeasance, there are recognized exceptions to the general no-duty-to-protect rule, one of which is the special relationship doctrine. Id. at 531.

Defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a special relationship with the other person. Id. at 532.

In addition, where there is a legal basis for imposing a duty, as in cases of misfeasance or when a special relationship exists, the court considers the foreseeability of risk from the third-party conduct. Id. at 532.

Generally, a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Id. In the case of criminal conduct by a third party, an extraordinarily high degree of foreseeability is required to impose a duty on the landowner, in part because it is difficult if not impossible in today's society to predict when a criminal might strike. Id. In this action, the SAC alleges the existence of misfeasance in two respects: 'On information and belief, Defendants invited known dangerous persons to the party. On information and belief, Defendants were present during the party and allowed invitees, most of whom were under the age of 21, to consume alcoholic beverages.' As alleged, Defendants are responsible for making the decedent's position worse by affirmatively creating a risk of harm. These factual allegations support the element of foreseeability. It is foreseeable that criminal conduct could occur when alcohol is provided to one or more known dangerous persons.

'In inviting the children to her home, respondent assumed that special relationship. Respondent recognized that special duty and relationship when she assured plaintiffs' parents it would be safe for them to play at her house.' Pamela L. v. Farmer (1980) 112 Cal. App. 3d 206, 211, 212.

'We believe, however, that public policy requires that where a child is sexually assaulted in the defendant wife's home by her husband, the wife's duty of reasonable care to the injured child depends on whether the husband's behavior was reasonably foreseeable.' Chaney v. Superior Court (1995) 39 Cal. App. 4th 152, 157.

Arguably, this case authority could apply outside the context of molestation. As alleged, Defendants invited minors into their home to participate in a hosted party, and allowed these minors to consume alcohol. Defendants could potentially owe a special relationship to oversee the well being of minors they invite into their home. Foreseeability is also alleged, as discussed above.

'Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.' Civ. Code 1714(d)(1).

'A parent, guardian or other adult who knowingly furnishes alcoholic beverages at the adult's residence Calendar No.: Event ID:  TENTATIVE RULINGS

3002588 CASE NUMBER: CASE TITLE:  CASTILLO VS BARREIRO [IMAGED]  37-2022-00052542-CU-PO-CTL to a person whom the adult knows or should have known to be under age 21 may be liable, to the underage person or someone harmed by the underage person, for injury or death proximately caused by furnishing of the alcoholic beverages.' Haning, Flahavan, Cheng and Wright, Cal. Prac. Guide: Personal Injury (Rutter Group 2022) at ¶ 2:2101. This could also give rise to breach of a duty supporting a negligence claim.

2nd COA: Premises Liability This cause of action is not completely identical to the first cause of action. Paragraph Prem.L-2. within this cause of action alleges a negligent failure to own, maintain, manage and operate the premises. This is potentially different than the first cause of action, which is focused on personal conduct. Also, specific fact pleading is not required.

3rd COA: Intentional Tort This Demurrer does not address this cause of action. Thus, the Demurrer is also overruled to the extent it is directed at this cause of action.

_____ 2.. Defendants' Motion (ROA # 37) to strike portions of Plaintiffs' SAC, is GRANTED.

The Court strikes the allegations referenced within the Notice of Motion at page 2, lines 1 - 5 (including the footnoted language).

Plaintiff is permitted leave to file and serve a Third Amended Complaint within twenty (20) days of the date of this hearing realleging the claim for punitive damages, if warranted by the allegations.

The Court elects to read and consider the opposition brief even though it was served one day late. See Code Civ. Proc. 1005(b) and (c). However, Plaintiff is cautioned against repeating this mistake in the future.

A claim for punitive damages cannot be pled generally. It is not sufficient to allege merely that defendant 'acted with oppression, fraud or malice.' Edmon & Karnow, Cal. Prac. Guide: Civ. Pro.

Before Trial (The Rutter Group 2023) at ¶ 6:158 (citing Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041, 1042 and Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal. App. 4th 598, 643).

Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent or malicious (e.g., that Defendant acted with the intent to inflict great bodily harm on Plaintiff or to destroy Plaintiff's property or reputation). Id. The only malice, contemplated by section 3294 is 'malice in fact': the motive and willingness to vex, harass, annoy, or injure. G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22, 29.

Malice is defined as intentional conduct causing injury, or Defendant's despicable conduct done with a willful and conscious disregard of the rights or safety of others. Civil Code 3294(c)(1).

A conscious disregard of the safety of others may constitute malice within the meaning of Civil Code section 3294. Taylor v. Superior Court (1979) 24 Cal. 3d 890, 895.

Punitive damages are awarded when Plaintiff establishes that Defendant willfully and deliberately failed to avoid the probable dangerous consequences of his or her actions. Id. at 895, 896.

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3002588 CASE NUMBER: CASE TITLE:  CASTILLO VS BARREIRO [IMAGED]  37-2022-00052542-CU-PO-CTL The 'despicable conduct' standard is satisfied, and punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1051.

The SAC alleges ultimate facts demonstrating Defendants' negligent conduct in hosting a party and allowing minors to consume alcohol. However, specific factual allegations are not included regarding despicable conduct in conscious disregard of the safety of the decedent and other partygoers. Specific facts are not alleged regarding knowledge of Mumper's propensity for violence, how and why these Defendants permitted minors to consume alcohol, preventative actions that could have been taken to reduce the likelihood of violence, the manner in which these Defendants failed to operate and maintain the property, etc.

In addition, it is undisputed that Defendants Barreiro and Sais are not proper Defendants to the third cause of action.

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