Judge: Kerry Bensinger, Case: 22STCV32429, Date: 2023-05-02 Tentative Ruling

Case Number: 22STCV32429    Hearing Date: May 2, 2023    Dept: 27

¶Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     May 2, 2023                           TRIAL DATE:  April 2, 2024

CASE:                         Martha A. Ramirez, et al. v. Essex Property Trust Inc., et al.

CASE NO.:                 22STCV32429

DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S

FIRST AMENDED COMPLAINT

MOVING PARTY:               Defendants Essex Portfolio, L.P., Essex Portfolio Management, L.P., and Essex Property Trust, Inc.

RESPONDING PARTY(S): Plaintiff Martha A. Ramirez, as guardian ad litem of Jennifer Molina, an incapacitated adult

I.          BACKGROUND

             On October 4, 2022, plaintiffs Martha A. Ramirez (“Ramirez”), as guardian ad litem for Jennifer Molina (“Molina”), filed this action against defendants Essex Portfolio, L.P., Essex Portfolio Management, L.P., Essex Property Trust, Inc., and Does 1 to 50.  On February 15, 2023, Plaintiffs filed the First Amended Complaint (“FAC”).  The FAC adds Oscar Luciano (“Luciano”) as a defendant and asserts causes of action for (1) Battery, (1) Negligence, and (3) Negligence Per Se and (4) Premises Liability.  The First, Second, and Third Causes of Action are asserted against Luciano only and the Fourth Cause of Action is asserted against all defendants. 

      In the FAC, Plaintiffs allege that Molina was visiting unit C214 of the Avondale Apartments (“Avondale”) when Molina was shot in the leg by Luciano and/or Doe Defendants, dragged out of the unit, and left unconscious and bleeding out at a nearby elevator.  Essex Portfolio, L.P., Essex Portfolio Management, L.P., and Essex Property Trust, Inc. (hereinafter, “Defendants”) are alleged to be the owners, manager, lessee, and/or lessor of Avondale.

             On March 22, 2023, Defendants filed this demurrer to the Fourth Cause of Action of Plaintiff’s FAC.  Plaintiff opposes and Defendants reply.

 II.        LEGAL STANDARDS

         A.    Demurrer  

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.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)  

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)   

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  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.)  

B.     Premises Liability and Third-Party Criminal Acts

The elements of a premises liability claim are (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)  

“It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition.  [Citation.]  In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include 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.” (Ann M. v. Pac. Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 674 (Ann M.), disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 235.)  “Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.”  (Ann M., 6 Cal.4th at p. 678.)  “[A]s a general matter, imposition of a high burden [upon the landowner to provide security measures] requires heightened foreseeability, but a minimal burden [to provide security measures] may be imposed upon a showing of a lesser degree.”  (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243.)  “[D]uty 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. [Citation.]” (Ann M., 6 Cal.4th at p. 679.)  Where a plaintiff asks for “relatively minimal security measures—ones already taken by defendants in another portion of the property—the degree of foreseeability required is not especially high” and “prior identity of prior crimes” is not necessary.  (Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1101.)  The requisite degree of foreseeability cannot be established in the absence of prior similar incidents of violent crime on the landowner’s premises.”  (Ann M., 6 Cal.4th at p. 679.)

III.      DISCUSSION

A.    Meet and Confer 

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone 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).)  Defense counsel has not satisfied this requirement.  (Declaration of Jasmine H. Ng, ¶¶ 3-5.)   However, a failure to comply with the requirement shall not be grounds to overrule or sustain a demurrer.¿ (Code Civ.  Proc., § 430.41, subd. (a)(4).)¿ Therefore, the Court considers the merits.[1]

B.     Factual Allegations of the Fourth Cause of Action

The Fourth Cause of Action in the FAC alleges as follows: “Defendants and each of them, owned, operated, managed, inspected, controlled and or leased AVONDALE Apartment Unit C214 …, where Plaintiff Molina was injured on or about February 02, 2022.  (FAC, ¶ 57.)  At all times mentioned herein, Plaintiffs are informed and believe after speaking with detective Cory Nakamura from the Los Angeles Police Department, AVONDALE had knowledge and/or notice of prior criminal activity by Defendant OSCAR LUCIANO at unit C214.  (FAC, ¶ 58.)

AVONDALE is negligent because it had reason to know of Defendant OSCAR LUCIANOs’ prior criminal activity and failed to warn and take reasonable security precautions for the benefit of Plaintiff.  (FAC, ¶ 60.)  AVONDALE knew or should have known Defendant OSCAR LUCIANO was a dangerous person and was capable of causing serious physical injury and AVONDALE could have prevented or protected against the risk of serious injury or death.  (FAC, ¶ 61.)  Defendant OSCAR LUCIANO leased Unit C214 premises from AVONDALE.  (FAC, ¶ 62.)  Defendant OSCAR LUCIANO was negligent in the use of Unit C214 because he allowed third-party individuals onto the AVONDALE premises and inside Unit C214 who obtained, carried, possessed and/or used a loaded firearm inside Unit C214.”  (FAC, ¶ 63.) 

  C.     Analysis

Defendants argue that the Fourth Cause of Action for Premises Liability fails because Plaintiffs do not adequately allege a necessary element: that Defendants breached their duty to protect guests from another person’s criminal conduct.  (CACI 1005)   Specifically, Defendants argue that the FAC does not satisfy the heightened foreseeability requirement by failing to allege the occurrence of prior similar incidents of gunshot attacks in a residential unit.

Plaintiffs contend that a lower degree of foreseeability is all that is required here because Plaintiffs allege that Defendants should have taken reasonable safety measures; there are no allegations that Defendants should have hired security guards.  Nor are Plaintiffs required to allege “perfect identity of prior crimes.” 

The Court finds that the FAC is deficient whether applying a heightened or lower foreseeability requirement.  The only allegation closely resembling a prior similar incident is found at paragraph 58.  It states: “Plaintiffs are informed and believe after speaking with detective Cory Nakamura from the Los Angeles Police Department, AVONDALE had knowledge and/or notice of prior criminal activity by Defendant OSCAR LUCIANO at unit C214.”  This allegation is insufficient to impose upon Defendants a duty to provide any level of security measure because, even construed liberally, “prior criminal activity” is not synonymous with “prior similar incidents.”  Plaintiff’s argument that Luciano had a “colorful” history does not help her cause as it is devoid of any factual reference.  A duty may attach if it is alleged that the landowner had notice of the prior similar incidents.  That allegation is absent here.

            Nor is it clear from the FAC what security measures Defendants should have provided.  Plaintiffs allege that Defendants are negligent “because it had reason to know of Defendant OSCAR LUCIANOs’ prior criminal activity and failed to warn and take reasonable security precautions for the benefit of Plaintiff.”  (FAC, ¶ 60.)  However, “reasonable security measures” as alleged are too vague and uncertain.  Plaintiffs have alleged that Molina was shot by Lucano while she was inside Luciano’s apartment, then dragged out of the apartment, and left unconscious. (FAC ¶¶ “19. Subsequently, at an unknown time, while inside unit C214, Plaintiff Molina was shot in the right leg by Defendant OSCAR LUCIANO and/or DOE Defendants. 20. Plaintiff Molina was dragged out of unit C214 by Defendant OSCAR LUCIANO and/or DOE Defendants, and left at or in an elevator at or near unit C214.”)  Plaintiffs argue that a simple means to prevent the harm includes “ensuring security, if implemented at the time of incident, was listening or being attentive for Avondale complex curfew violations, conducting scheduled patrols, and/or keep a look out for any persons, vehicles or things that did not belong at the Avondale complex.”  (Opposition, p. 7:18-20.)  But these allegations are not pleaded, nor do they correlate to protection of someone shot inside a tenant’s apartment.  

Plaintiffs cite Onciano v. Golden Palace Rest., Inc. (1990) 219 Cal.App.3d 385 for the proposition that the lack of prior similar incidents does not by itself negate the element of foreseeability as a matter of law.  Onciano does not help Plaintiffs.  In Onciano, plaintiff was robbed in the defendant’s parking lot.  The defendant moved for summary judgment and produced evidence that no criminal activity took place in its parking lot, or elsewhere on its premises, in the six and half years preceding plaintiff’s assault and battery.  The Court of Appeal concluded “it was reasonably foreseeable that defendant’s patrons using its parking lot at night could become the victims of criminal conduct and suffer consequent injuries.”  (Onciano, 219 Cal.App.3d at p. 393.)  A key aspect of the Court of Appeal’s reasoning was the nature of the premises.  A parking lot “is largely deserted and automobile there are left unattended for long periods of time thereby furnishing an especial temptation and opportunity for criminal misconduct.”  (Id. (citations and quotations omitted).)   Unlike Onciano, the premises in question here is an apartment building, which does not present the same “special temptation and opportunity for criminal misconduct.” 

Based on the foregoing, the demurrer to the Fourth Cause of Action is SUSTAINED.

D.    Motion to Strike

Defendants move to strike punitive damages from the FAC.  Allegations concerning punitive damages appear at Paragraph 69 and in the Prayer for Relief.  Paragraph 69 is alleged in support of the Fourth Cause of Action.  Because the Court has sustained the demurrer to the Fourth Cause of Action, Defendants’ motion to strike is MOOT.

IV.       CONCLUSION

            The demurrer is sustained with leave to amend.  The motion to strike is moot.

2Plaintiff is ordered to file and serve a Second Amended Complaint within 20 days of this ruling.  

Defendants Essex Portfolio, L.P., Essex Portfolio Management, L.P., and Essex Property Trust, Inc. are ordered to file and serve their responsive pleading within 30 days of service of the Second Amended Complaint.  

  Moving party to give notice. 

Dated:   May 2, 2023                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.