Judge: John J. Kralik, Case: 24BBCV00459, Date: 2024-08-02 Tentative Ruling
Case Number: 24BBCV00459 Hearing Date: August 2, 2024 Dept: NCB
North
Central District
|
johnny
o’connor by and through his conservator alexandra o’connor, Plaintiff, v. john
t. toal, et al., Defendants. |
Case No.:
24BBCV00459 Hearing Date: August 2, 2024 [TENTATIVE] order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Johnny O’Connor by and through
his conservator Alexandra O’Connor (“Plaintiff”) alleges that Defendants John
T. Toal and/or the John T. Toal Trust own the real property at 629 N. Reese
Place in Burbank. Plaintiff alleges that
on May 10, 2022, Defendants allowed a dangerous condition to exist on the
property, such that they breached their duty to Plaintiff.
The complaint, filed February 26, 2024,
alleges causes of action for: (1) general negligence; (2) premises liability;
and (3) violation of Civil Code, § 52.5.
B.
Motions
on Calendar
On May 14, 2024, Defendants filed a
demurrer and motion to strike in a single filing.
The Court is not in receipt of an
opposition brief.
On July 8, 2024, Defendants filed a notice
of non-opposition, stating that they were not in receipt of an opposition brief
from Plaintiff.
DISCUSSION
RE DEMURRER
Defendants
demur to the 1st to 3rd causes of action in the
complaint.
A. 1st and
2nd causes of action for general negligence and premises liability
The elements of a
premises liability claim and negligence claim are the same: a legal duty of
care, breach of that duty, and proximate cause resulting in injury. (Kesner
v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
Defendants demur to the 1st
and 2nd causes of action, arguing that there are no facts alleged to
support these causes of action.
In the 1st cause of
action, Plaintiff alleges that Defendants own the subject property, and had a
duty to use reasonable are to maintain the property in a reasonably safe manner
and discover unsafe conditions.
Plaintiff alleges that Defendants failed to take action to prevent harm
to or warn Plaintiff against any dangers.
(Compl. at PLD-PI-001(2).) In the
2nd cause of action, Plaintiff alleges that Defendants owned/leased,
managed, controlled, and operated the property and negligently maintained and
operated the property to allow a dangerous condition to exist, such that
Defendants breached their duty to Plaintiff.
(Compl. at PLD-PI-001(4).)
The allegations of the 1st
and 2nd cause of action fail to allege facts that support the
elements of negligence and premises liability.
Plaintiff fails to allege what the dangerous condition was, whether Plaintiff
was injured, how Plaintiff was damaged, etc.
As such, the demurrer to the 1st and 2nd causes of
action is sustained with leave to amend.
B. 3rd
cause of action for violation of Civil Code, § 52.5
Penal Code, §
52.5(a) states in relevant part: “A
victim of human trafficking, as defined in Section 236.1 of the Penal Code, may
bring a civil action for actual damages, compensatory damages, punitive
damages, injunctive relief, any combination of those, or any other appropriate
relief.”
Defendants argue that the 3rd cause of action too fails to
allege any facts against Defendants.
Defendants also provide the declaration of John T. Toal, wherein he
states that he has never been convicted under Penal Code, § 236.1.
At this time, the Court cannot consider Mr. Toal’s declaration statement
as this constitutes extrinsic evidence. The demurrer tests
the pleading alone and not the evidence or other extrinsic matters which do not
appear on the face of the pleading or cannot be properly inferred from the
factual allegations of the complaint. (Executive Landscape Corp. v. San Vicente
Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)
However, a review of the 3rd
cause of action shows that it lacks facts to state a cause of action against
Defendants. In the 3rd cause of action, Plaintiff alleges that Defendants
engaged in malice, oppression, coercion, and/or through duress deprived
Plaintiff of his personal liberty, which in turn violated Civil Code, §
52.5. Plaintiff alleges that he
sustained damages, including physical injury, emotional distress and economic
losses. He alleges that by virtue of
Defendants’ unlawful subjection of Plaintiff to a situation of human
trafficking, Defendants are liable to Plaintiff fore treble and punitive
damages. (Compl. at MC-025.) Facts should be alleged against Defendants regarding
the May 10, 2022 incident, as opposed to the generalized elements of the cause
of action.
The demurrer to
the 3rd cause of action is sustained with leave to amend.
DISCUSSION
RE MOTION TO STRIKE
Defendants move to
strike portions of the 1st cause of action, the attachment for
exemplary damages, and Plaintiff’s prayer for damages regarding Civil Code, §
52.5.
In light of the ruling
on the demurrer, the motion to strike is taken off-calendar as moot.
CONCLUSION AND ORDER
Defendants John T. Toal, John T.
Toal as trustee of the John T. Toal Trust, and the John T. Toal Trust’s
demurrer to the complaint is sustained with 20 days leave to amend.
In light of the ruling
on the demurrer, the motion to strike is taken off-calendar as moot.
Defendants
shall
give notice of this order.
DATED: August 2, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court