Judge: Kerry Bensinger, Case: 21STCV37000, Date: 2023-02-03 Tentative Ruling

Case Number: 21STCV37000    Hearing Date: February 3, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           On October 7, 2021, Plaintiffs Richard Patterson and William Milton, successors in interest and/or personal representatives of the Estate of Charles Michael Farrell (“Decedent”) commenced this action against Defendants The Salvation Army (“TSA”), Colby Hudson Pinckard (“Pinckard”), Jackie Roe Triplett (“Triplett”), and Edwin Bonilla (“Bonilla”). The action arises out of an altercation between the Individual Defendants, who are three employees and beneficiaries (participants in a residential treatment program) of TSA, and Decedent, a man visiting a nearby homeless encampment.

          The operative Third Amended Complaint (“TAC”), filed on August 31, 2022, alleges causes of action for (1) Negligence (Survivorship - CCP § 377.10, Et Seq.,) as against TSA; (2) Negligence (Survivorship - CCP § 377.10, Et Seq.,) as against Pinckard, Triplett, And Bonilla (collectively, the “Individual Defendants”); (3) Assault & Battery As A Survivorship Action as against TSA; (4) Negligence - Wrongful Death Action as against TSA; (5) Negligence, Assault, & Battery As A Wrongful Death Action as against the Individual Defendants; (6) Assault & Battery As A Wrongful Death Action as against TSA; (7) Public Nuisance & Violation Of Civil Code §§ 3479 & 3480; (8) Premises Liability As A Wrongful Death Action as against TSA, and (9) Negligent Supervision – Wrongful Death as against TSA.

Plaintiffs allege on October 19, 2019, the Individual Defendants were picking up trash in the area on and around the building owned by TSA and allowed to wander in the vicinity. (TAC, ¶ 15.) Plaintiffs allege there was a homeless encampment that was a known source of friction to the community and to TSA, which indicated the need for heightened supervision and monitoring. (Ibid.) Decedent was allegedly visiting with a Hispanic woman he had befriended and talking to her adjacent to the encampment. (TAC, ¶ 16.) At some point, Decedent slipped and fell on property that is or should have been under TSA’s control. (Ibid.) Triplett hit and kicked Decedent and Pinkcard stepped on Decedent’s head when Decedent was on the ground. (Ibid.) Plaintiffs allege that the Individual Defendants found it offensive that Decedent, a black man, was talking to a Hispanic woman, and commented on this fact, and became violent because of it. (Ibid.) Plaintiffs claim the Individual Defendants were allowed to wander without supervision in what should have been a forbidden area, near and inside the encampment area. (TAC, ¶ 17.) Plaintiffs also claim TSA failed to maintain the area free from wet, muddy, and slippery conditions. (Ibid.)

On December 29, 2022, Bonilla filed the instant demurrer to the second and fifth causes of action for Negligence (Survivorship - CCP § 377.10, Et Seq.,) and Negligence, Assault, & Battery as a Wrongful Death Action, respectively.

On January 23, 2023, Plaintiffs filed their opposition papers.

On January 27, 2023, Bonilla filed his reply.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.   Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

Here, based on the declaration submitted by Bonilla’s counsel, he was unable to adequately meet and confer with Plaintiffs. (Patterson Decl. ¶¶ 3-7.) While Bonilla has not abided by the meet and confer requirement, this is not grounds to overrule his demurrer, and thus, the Court will proceed to address the merits of the demurrer despite this deficiency. (Code Civ. Proc. § 430.41(a)(4).)

B.   Demurrer

Bonilla demurrers to the second and fifth causes of action raised in the TAC for Negligence (Survivorship - CCP § 377.10, Et Seq.,) and Negligence, Assault, & Battery as a Wrongful Death Action, respectively, on the ground that they have not been sufficiently alleged to constitute a cause of action against him. (Notice of Demurrer at pg. 2.)

“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.” (Civ. Code § 1714(a).)

The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm.  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Here, Bonilla argues that the second and fifth causes of action fail because the TAC does not adequately allege that Bonilla owed Decedent a duty of care. (Demurrer at pp. 7-9.) First, Bonilla contends that no special duty has been alleged to exist between him and Decedent. (Id. at pp. 7-8.) Second, he argues that the “good Samaritan duty” does not apply because it is merely alleged that he watched while Decedent was attacked. (Id. at pg. 8.) Third, he asserts that the TAC fails to allege that he took any affirmative actions that would have given rise to a duty. (Id. at pg. 9.)

In opposition, Plaintiffs first assert that the Bonilla is liable for assault and battery because he is alleged to be an assailant and he is vicariously liable for aiding and abetting the other assailants. (Opposition at pp. 4-6.) Next, Plaintiffs argue that a special relationship does not need to exist to establish a duty to protect against third-party harm where a defendant’s own actions create a foreseeable risk of harm. (Id. at pp. 6-7, relying on Weirum v. RKO General Inc. (1975) 15 Cal.3d 40, 46, 48-49.)

In reply, Bonilla asserts that the allegation he is an assailant is conclusory and the TAC fails to set forth what his conducted entailed. (Reply at pg. 2.) Also, Bonilla contends that the TAC fails to set forth the requisite elements for aiding and abetting. (Ibid.) Next, Bonilla asserts that, because he was merely a witness to the attack, he had no independent duty to rescue Decedent. (Id. at pg. 3.) Further, he reasons that any grant of leave to amend to include him as an aider and abettor in a separate cause of action would contradict the allegation that he merely stood by and watched the attack. (Id. at pp. 3-4.) 

Upon review of the TAC, the Court finds that, even though the TAC alleges that Bonilla “stood by and watched” while Pinckard and Triplett attacked Decedent (TAC ¶ 17), it can be inferred from the allegations that Bonilla assaulted Plaintiff prior to the actual attack. Paragraph 39 of the TAC partially states: “PINCKARD, TRIPLETT, and BONILLA did not like the black man (Decedent) associating with a younger Hispanic female. This sparked anger and outrage in them and caused them to become unnecessarily confrontational with the Decedent that sparked their beating of him and eventual killing of the Decedent.” Also, it is alleged that Decedent slipped and fell when the Individual Defendants confronted him and prior to the attack. (TAC ¶ 17.) Based on the allegations of racial animus and the confrontational nature of the incident prior to the attack, it can be reasonably inferred that Bonilla acted with the intent to threatened to touch Decedent in a harmful or offensive manner.

Additionally, on the face of the TAC, an aider and abettor theory of liability has been alleged against Bonilla.

Liability may also be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person.

(Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846.) In this instance, the prior assault could reasonably be inferred as “substantial assistance” because it resulted in Decedent slipping and falling onto the ground. It was at this point that Pinckard and Triplett attacked Decedent. (TAC ¶ 17.) Furthermore, it is also alleged that Bonilla ran away from the scene with Pinckard and Triplett, which suggests that these individuals were acting in concert. Nevertheless, the fact of whether Bonilla was merely a bystander observing the attack or a participant should be left for a jury to decide. (See People v. Luna (1956) 140 Cal.App.2d 662, 665.) Similarly, the issue of Bonilla’s alleged assault created a foreseeable risk of harm from Pinckard and Triplett’s conduct is a question of fact. (Weirum, supra, 15 Cal.3d at 48-49.)

          Accordingly, the demurrer is overruled in its entirety

IV.     CONCLUSION

Based on the foregoing, Bonilla’s demurrer is OVERRULED in its entirety.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 3rd day of February 2023