Judge: Lisa R. Jaskol, Case: 22STCV01951, Date: 2023-12-12 Tentative Ruling
Case Number: 22STCV01951 Hearing Date: December 12, 2023 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On January 18, 2022, Plaintiff Vanessa Coats (“Plaintiff”) filed this action against Defendants Michael V. Jenkins (“Jenkins”) and Does 1-50 for general negligence and premises liability. Plaintiff later amended the complaint to include Defendant Emotional Health Association dba Share! (“EHA”) as Doe 1.
On March 29, 2022, Jenkins filed an answer and a cross-complaint against Cross-Defendants Norma Burks (“Burks”) and Roes 1-25 for declaratory relief, implied indemnity and equitable apportionment.
On June 8, 2023, Plaintiff filed a first amended complaint.
On July 12, 2023, Jenkins filed an answer.
On September 7, 2023, the Court sustained EHA’s demurrer with leave to amend.
On October 3, 2023, Plaintiff filed a second amended complaint against Jenkins, EHA, and Does 1-50 for general negligence and premises liability.
On November 6, 2023, Jenkins filed an answer.
On November 13, 2023, EHA filed a demurrer to be heard on December 12, 2023. On November 29, 2023, Plaintiff filed an opposition. On December 5, 2023, EHA filed a reply.
Trial is currently scheduled for July 9, 2024.
PARTIES’ REQUESTS
EHA requests that the Court sustain the demurrer.
Plaintiff requests that the Court overrule the demurrer.
EHA’s REQUEST FOR JUDICIAL
NOTICE
Jenkins's deposition testimony
(Exh. D): Denied
LEGAL STANDARD
A. Demurrer
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
* * *
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. . . .”
(Code Civ. Proc., § 430.10, subds. (e), (f).)
In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].)
“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).” (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).)
B.
Premises liability and negligence
“‘The elements of a cause of action for premises liability are the same as those for negligence.’” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207, quoting Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Accordingly, the plaintiff must prove, “ ‘ “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ibid., quoting Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)
DISCUSSION
A. The second amended complaint
The second amended complaint alleges the following:
EHA places tenants into single-family houses through Los Angeles County, including the property owned by Jenkins (“the premises”). EHA’s website states that it “provides tenant referrals to the house, responds to any tenant problems in a timely manner, visits regularly to help with tenant needs and insures that the house is properly run.” EHA placed Norma Burks (“Burks”) at the premises, where she became a resident.
On April 2, 2020, Plaintiff, a resident of the premises, was standing near a window on the second floor of the premises when Burks pushed Plaintiff out of the window. (SAC ¶ 15.) Plaintiff suffered injuries as a result of the incident.
Prior to the incident, Plaintiff had notified Jenkins, Plaintiff’s landlord, of Burks’s dangerous proclivities and of Plaintiff’s fear for her safety, either directly or through the agents and/or employees of EHA. In addition, one month prior to the incident, Jenkins investigated an incident where Burks threatened and assaulted another resident. Jenkins was also on notice that Burks had previously brandished a knife at another resident. Jenkins and EHA failed to take reasonable actions to prevent the incident. (SAC ¶¶11-13.)
Jenkins and EHA negligently owned, leased, occupied, and controlled the premises and allowed Burks to enter and remain on the premises after they received notice that Plaintiff feared for her safety. In addition, they failed to ensure the property was maintained in a reasonably safe condition and failed to properly install and maintain windows and screens. (SAC ¶¶ 11-16.)
Jenkins
and EHA failed to protect Plaintiff from physical harm by Burks despite
receiving actual and constructive notice that Plaintiff feared for her safety.
(SAC ¶ 23.) Burks’s presence on the premises created an unreasonable risk of
harm. Jenkins and EHA knew or through the exercise of reasonable care should
have known that the Burks would attack Plaintiff but they failed to protect
Plaintiff from harm. (SAC ¶ 25.) Jenkins and EHA had actual and constructive
notice of Burks’s dangers tendencies prior to the incident. (SAC ¶ 23.)
B. EHA’s demurrer
1. Sham pleading doctrine
EHA asks the Court to sustain the demurrer under the “sham pleading” doctrine because the second amended complaint omits the phrase “when suddenly and without warning,” which Plaintiff had included in the first amended complaint. (See First Amended Complaint ¶ 9 [“On April 2, 2020, Plaintiff Vanessa Coats was a resident on the property located at 3241 Flower Street, Lynwood, CA 90262, standing near a window on the second floor when suddenly and without warning, Cross-Defendant Norma Burks, an individual also residing at the property pushed Plaintiff out of the window”].)
The omission of the phrase does not require application of the sham pleading doctrine. Inclusion of the phrase in the first amended complaint is most reasonably read as alleging a lack of warning to Plaintiff immediately prior to the incident. The phrase cannot reasonably be read as alleging that defendants had no notice that Burks posed a danger to residents. Stated another way, the Court would not consider the phrase “when suddenly and without warning” in the first amended complaint to be a judicial admission by Plaintiff that defendants lacked notice that Burks presented a danger. Therefore, omission of the phrase in the second amended complaint does not render it a sham pleading.
2. Jenkins’s deposition testimony
EHA also asks the Court to sustain the demurrer because Jenkins purportedly testified at his deposition that he did not recall any instances of violence involving Burks. The Court has denied EHA’s request to take judicial notice of Jenkins’s deposition testimony because EHA has not cited any valid basis for judicial notice. As a result, the Court will not consider Jenkins’s testimony in ruling on EHA’s demurrer.
3. EHA’s knowledge of Burks’s prior violent acts
EHA argues the second amended complaint does not allege that EHA – as opposed to Jenkins – was aware of Burks’s prior violent conduct. “ ‘[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.’ ” (Sakai v. Massco Investments, LLC (2018) 20 Cal.App.5th 1178, 1187-1188, quoting Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676.)
In response, Plaintiff relies on (1) the allegation that “each Defendant was the agent, representative, employee and/or employer of each of the other Defendants and was acting within the scope and course of said agency and/or employment at the time of the incident alleged herein” (SAC ¶ 5), (2) the allegation that EHA’s website states that it “provides tenant referrals to the house, responds to any tenant problems in a timely manner, visits regularly to help with tenant needs and insures that the house is properly run” (SAC ¶ 10), and (3) the allegations that Jenkins knew about Burks’s prior violent acts. (Opposition pp. 13-14.)
The agency allegations state the defendants acted within the course and scope of the alleged agency “at the time of the incident” (SAC ¶ 5) – not earlier. Even if the complaint alleged an agency relationship prior to the incident, Plaintiff cites no authority for the proposition that a party’s agency relationship alone can establish foreseeability. The information on EHA’s website and allegations about Jenkins’s knowledge likewise do not support Plaintiff’s contention that the second amended complaint sufficiently pleads facts showing that EHA had a duty to control Burks’s wrongful acts.
The Court sustains EHA’s demurrer.
CONCLUSION
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days of the date of the hearing.