Judge Kerry Bensinger, Case Number: 24STCV29571, Date: 2025-04-02 Tentative Ruling

MOVING PARTY: Defendants Essex Property Trust, Inc., Essex Portfolio, LP, and Essex Bunker Hill, L.P.

This case arises from the murder of Meleesa Mooney (“Mooney”). Plaintiff Margaret McDonald (“Plaintiff”) is the biological mother of Mooney. Plaintiff, individually and as Successor-in-Interest to Mooney, alleges causes of action for negligence, negligent hiring and supervision, and negligent security, against defendants Essex Property Trust, Inc., Essex Portfolio, L.P., Essex Bunker Hill, L.P., the City of Los Angeles, Officer Kevin Hewee #44620, and Officer Gabriel J. Quintero #44513.

As alleged in Plaintiff’s Complaint, Essex Property Trust, Inc., Essex Portfolio, L.P., and Essex Bunker Hill, L.P. (hereafter, “Essex Defendants”) are the owners and managers of the Skye at Bunker Hill apartments located at 234 S. Figueroa Street, Los Angeles, California 90012. Mooney was a tenant of Apt. 520 (the “Premises”). On September 6, 2023, Mooney returned to Los Angeles from her travels. Plaintiff and her family made numerous attempts to contact Mooney to no avail. Mooney’s lack of responsiveness was unusual. On September 10, 2023, after not hearing from Mooney and fearing something tragic had happened to her, Plaintiff contacted 9-1-1 and requested a welfare check. On the same day, Officers Kevin Hewee and Gabriel Quintero (hereafter, “Defendant Officers”) responded to the call requesting a welfare check of the Premises. Defendant Officers knocked on Mooney’s apartment door but their visit went unanswered. Defendant Officers left their contact information at Mooney’s door and left the Premises. They did not connect with the leasing office or 24-hour security guard at the apartment building.

On September 12, 2023, Plaintiff requested another welfare check. The welfare check took place that same day. Plaintiff went to the Premises to meet with the LAPD officers. At the Premises, a security guard informed Plaintiff that two suspicious individuals (a male and female) went to Mooney’s apartment on September 6, 2023. The individuals had Mooney’s key fob. The security guard took photographs of the male individual’s vehicle. Despite having knowledge of the suspicious activity, the security guard did not report the individuals to local authorities or check on the safety of Mooney.

The LAPD officers arrived at the Premises. Upon inspection of the Premises, the LAPD officers discovered Mooney inside a refrigerator with her wrists and ankles bound and her mouth gagged. Mooney was declared dead on September 12, 2023. The autopsy report indicated Mooney’s death was likely the result of actions of another individual(s) with suspicion of homicidal asphyxia.

As relevant here, Plaintiff alleges the Essex Defendants’ employee, the security guard who observed the suspicious individuals failed to take reasonable measures to protect tenants (including acts by a tenant’s guest) from criminal acts, such as reporting the suspicious individuals to local authorities and/or checking on Mooney’s safety. Plaintiff further alleges the Essex Defendants breached their duty of care in the manner that they hired, managed, or supervised the security guard and by failing to provide adequate security at the Premises.

On January 2, 2025, Essex Defendants filed a demurrer to each cause of action and concurrently filed a motion to strike the claim for attorney fees.

As a threshold manner, the motion to strike is meritorious. Plaintiff does not identify a contract or statute in the Complaint which authorizes an award of attorney fees. Having not opposed the motion to strike, Plaintiff concedes the point. Accordingly, the motion to strike is GRANTED.

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) 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.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.)

“Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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., § 430.41, subd. (a).)¿

Here, defense counsel sent a meet and confer letter on December 24, 2024. (Ng Decl., ¶ 4.) Sending a letter does not satisfy the meet and confer requirement. Despite the procedural defect, the court will consider the merits of the demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)[1]

Plaintiff brings three causes of action for negligence (negligence, negligent hiring and supervision, and negligent security). Essex Defendants argue the claims fail because (1) Essex Defendants did not control Mooney’s unit, (2) Plaintiff fails to plead a heightened degree of foreseeability, (3) Plaintiff cannot establish causation, and (4) the Complaint does not allege each element of a negligent hiring claim. The court addresses these arguments in turn.

The elements for a cause of action for negligence and negligent security are the same: “(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.)¿ Essex Defendants argue these causes of action fail because they did not control the unit and because there are no allegations establishing heightened foreseeability.

Plaintiff alleges the Essex Defendants should have taken reasonable measures to protect tenants from criminal acts including assault, battery, and murder. (Complaint, ¶¶ 39, 88.) Reasonable measures include reporting suspicious suspects and checking on Mooney’s safety. (Complaint, ¶ 40.)

Essex Defendants argue they had no duty to protect Mooney from third party criminal acts within Mooney’s unit because they did not control or possess that unit. The argument is not well taken. As alleged, Essex Defendants owned and managed the Skye at Bunker Hill apartments. Essex Defendants provided security guards. In other words, Essex Defendants owned or controlled other areas of the apartment building. Indeed, one of the security guards observed the suspicious individuals in possession of Mooney’s key fob on the day Plaintiff began to worry for Mooney’s safety. That same security guard took photographs of the suspicious individuals’ vehicle yet failed to either report their activity or check on Mooney. This challenge lacks merit.

“To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ [Citation.] Recovery for negligence depends as a threshold matter on the existence of a legal duty of care.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 (Brown).) “The existence of a duty is a question of law for the court.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.), disapproved on other grounds in Reid v. Google (2010) 50 Cal.4th 512, 527, fn. 5.)

“In general, each person has a duty to act with reasonable care under the circumstances. [Citations.] However, ‘one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.’ [Citation.] ‘A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 (Regents); Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado) [“A 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.”].)

Courts apply a two-step inquiry to determine “whether a defendant has a legal duty to take action to protect the plaintiff from injuries caused by a third party.” (Brown, supra, 11 Cal.5th at p. 209.) “First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if so, the court must consult the factors described in Rowland [v. Christian (1968) 69 Cal.2d 108] to determine whether relevant policy considerations counsel limiting that duty.” (Ibid.)

The two-step inquiry is based on the premise that “even when two parties may be in a special relationship, the unforeseeability of the kind of harm suffered by the plaintiff or other policy factors may counsel against establishing an affirmative duty for one party to protect another.” (Brown, supra, 11 Cal.5th at p. 219.) “A court might conclude that duty should not be imposed because, for example, the type of harm the plaintiff suffered was unforeseeable, or because there was no moral blameworthiness associated with defendant's conduct, notwithstanding the defendant's special relationship to the plaintiff. Put differently, even when a special relationship gives rise to an affirmative duty to protect, a court must still consider whether the policy considerations set out in Rowland warrant a departure from that duty in the relevant category of cases.” (Id. at p. 222.)

Here, Plaintiff adequately alleges the special relationship of a landlord and tenant. “ ‘[t]he relationship between a possessor of land and an invitee is a special relationship giving rise to a duty of care.’ [Citations.] ‘The duty of care includes a duty to take reasonable steps to protect persons on the property from physical harm caused by the foreseeable conduct of third parties,’ including foreseeable criminal acts.” (Hanouchian v. Steele (2020) 51 Cal.App.5th 99, 107; see Ann M., supra, 6 Cal.4th at p. 674 [landlord owes duty to tenants and patrons “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.”].) Accordingly, the court proceeds to the second step of the inquiry.

Essex Defendants argue Plaintiff fails to establish any prior similar incidents to give rise to a duty to protect Mooney. (Brown, supra, 11 Cal.5th at p. 209. The Rowland factors include:“ ‘[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” (Ann M., supra, 6 Cal.4th at p. 675, fn. 5, quoting Rowland v. Christian, supra, 69 Cal.2d at p. 113; see Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 (Castaneda).) “Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.” (Castaneda, at p. 1213.)

As an example of the application of the two step analysis, the California Supreme Court in Brown pointed out that “in our recent decision in Regents, supra, 4 Cal.5th at page 627, 230 Cal.Rptr.3d 415, 413 P.3d 656, we held that the special relationship between a university and its students creates a “duty to use reasonable care to protect their students from foreseeable acts of violence in the classroom or during curricular activities.” We then turned to Rowland to decide whether policy considerations “justif[ied] excusing or limiting” that duty to protect, and concluded the answer was no. (Citation.)” (Brown, supra, 11 Cal.5th at p. 218.) Indeed, as the Brown Court stated, “even when two parties may be in a special relationship, the unforeseeability of the kind of harm suffered by the plaintiff or other policy factors may counsel against establishing an affirmative duty for one party to protect the other.” (Id. at p. 219.) “[A] court might conclude that duty should not be imposed because, for example, the type of harm the plaintiff suffered was unforeseeable, or because there was no moral blameworthiness associated with the defendant's conduct, notwithstanding the defendant's special relationship to the plaintiff. Put differently, even when a special relationship gives rise to an affirmative duty to protect, a court must still consider whether the policy considerations set out in Rowland warrant a departure from that duty in the relevant category of cases.” (Id. at p. 222.)

Essex Defendants argue this court should limit the duty because a category of cases – third party criminal conduct – warrants a high degree of foreseeability of harm before imposing a duty of care. Case law supports Defendants’ argument. “[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. . . . [T]he 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. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well established policy in this state.” (Ann M., supra, 6 Cal.4th at p. 679, footnote omitted.) “Heightened foreseeability is satisfied by a showing of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents.” (Delgado, supra, 36 Cal.4th at p. 245, italics in original.) “To establish heightened foreseeability for third party criminal conduct, our authorities have consistently required actual knowledge—not constructive, inferential, or knowledge by association—to impose a burdensome legal duty.” (Hanouchian, supra, 51 Cal.App.5th at p. 111.) “When the court engages in any analysis of foreseeability, the emphasis must be on the specific, rather than more general, facts of which a defendant was or should have been aware.”
(Melton v. Boustred (2010) 183 Cal.App.4th 521, 536 (quoting Pamela W. Millsom (1994) 25 Cal.App.4th 950, 957).)

The question is whether Plaintiff alleged facts in the Complaint demonstrating a high degree of foreseeability that harm would come to Mooney if adequate security measures were not taken. The court finds such facts are not alleged. Here, Plaintiff generally alleges that “the Premises and its immediate vicinity was a high crime area, that there had been numerous violent criminal acts and attacks perpetrated on residents, invitees, and the public, and that criminal acts and attacks were reasonably likely to be perpetrated on residents, invitees, and the public on the Premises unless Defendant ESSEX took reasonable and proper steps to provide adequate security at the Premises.” (Complaint, ¶ 80.) This allegation is insufficient. “When an injury occurs despite a defendant's efforts to provide security or supervision, it is relatively easy to claim that, ipso facto, the security or supervision provided was ineffective. Without more, such claims fail.” (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1370.) Rather, Plaintiff’s allegation simply amounts to a general prospect or a general knowledge of the possibility of violent criminal conduct. (Hanouchian, supra, 51 Cal.App.5th at p. 111.)

Consideration of the other Rowland factors weigh in favor of limiting such a duty of care in this case. “With respect to the two most crucial considerations, our Supreme Court has instructed that ‘ “the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.] ‘ “[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.” ’ ” ’ ” (Hanouchian, supra, 51 Cal.App.5th at p. 108.) Here, although Essex Defendants employ security guards at the Skye at Bunker Hill apartments, there are insufficient allegations to establish their knowledge or awareness of the potential harm. The allegations do not specify the specific prior similar incidents which would have placed Essex Defendants on notice, let alone when they occurred or the location of the prior occurrences. In her opposition, Plaintiff cites cases which are inapposite and do not change the result.[2]

The foreseeability factors (heightened foreseeability and certainty) as well as the remaining policy factors weigh in favor of limiting Essex Defendants’ duty of care.[3] Having so concluded, the court does not address Essex Defendants’ attack on Plaintiff’s proposed security measures. Accordingly, the demurrer to the First and Third Causes of Action is SUSTAINED. Leave to amend is GRANTED.[4]

Essex Defendants argue the Second Cause of Action for negligent hiring and supervision fails because there are no factual allegations to establish that the security guard was unfit to carry out his duties or that he had a duty to prevent third party criminal activity within Mooney’s unit. Essex Defendants further argue that there are no factual allegations to show Essex Defendants were negligent in hiring or supervising the security guard because no duty existed to protect Mooney from unforeseeable third-party criminal conduct.

The argument is not well taken. The elements of negligent hiring, supervision, or retention claim are: (1) that the defendant hired the employee; (2) that the employee was/became unfit to perform the work for which they were hired; (3) that the employer knew or should have known that the employee was/became unfit and that they created a particular risk to others; (4) that the employee’s unfitness harmed the plaintiff; and (5) that the employer’s negligence in hiring or retaining the employee was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 426.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ”¿ (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)¿¿

Here, Plaintiff alleges the security guard who observed the suspicious individuals was unfit and/or incompetent to perform the work for which they were hired. (Complaint, ¶71.) Essex Defendants knew or should have known that its employees, were unfit and/or incompetent, creating a particular risk to others and Ms. Mooney when Ms. Mooney was viciously attacked at inside her apartment. (Complaint, ¶ 75.) Defendant ESSEX’s negligence in hiring, supervising and/or retaining said employees was a substantial factor in causing Ms. Mooney to be assaulted and battered, which resulted in her death. (Complaint, ¶ 76.) Each element of the claim is alleged. Moreover, Essex Defendants do not provide any authority for the proposition that a plaintiff must establish heightened foreseeability to state a claim for negligent hiring.

The Demurrers to the First and Third Causes of Action in the Complaint are Sustained, with 20 days leave to amend. The Demurrer to the Second Cause of Action is Overruled.

Kerry Bensinger

Judge of the Superior Court

¹ Failure to meet and confer may result in the continuance of the hearing.¿¿¿

[2] Plaintiff also improperly cites Valencia v. Michaud (2000) 79 Cal.App.4th 741 which was ordered not to be published. (Cal. R. Ct., rule 8.1115.)

[3] Essex Defendants center their argument entirely on the requirement of heightened foreseeability and do not address the remaining Rowland factors.

[4] Plaintiff should include allegations of prior similar incidents, i.e, the nature of the incidents and when they occurred to adequately allege heightened foreseeability.