Judge: Lisa R. Jaskol, Case: 23STCV14352, Date: 2023-10-09 Tentative Ruling
Case Number: 23STCV14352 Hearing Date: October 9, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On June 21, 2023, Plaintiff Michael Levtow (“Plaintiff”) filed this action against Defendants HOA Management Professionals, Inc. (“Management”), Montclair (Kenmore) Homeowners Association, Inc. (“HOA”), Jonathan Ardon (“Ardon”), and Does 1-100 for negligence, assault and battery.
On September 6, 2023, Management and HOA filed a demurrer to be heard on October 9, 2023. Plaintiff has not filed an opposition.
Trial is currently scheduled for December 18, 2024.
PARTIES’ REQUEST
Management and HOA request that the Court sustain their demurrer to the negligence claim, which is the only claim asserted against them.
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:
* * *
“(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.)
B. Landowner’s liability for third-party criminal
acts
“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663 (Williams), citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) “The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... 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 . . . .’” (Ibid.) This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko).)
“ ‘ “ ‘Courts ... invoke[ ] the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act ....” ’ ” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Our Supreme Court has explained that an exception to the general rule of Civil Code section 1714 must be “ ‘ “ ‘clearly supported by public policy.’ ” ’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Courts look to what are commonly called ‘the Rowland factors’ in determining whether policy considerations favor such an exception.” (Ibid., citing Vasilenko, supra, 3 Cal.5th at p. 1083.) “These are “ ‘ “the 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.” [Rowland v. Christian (1968) 69 Cal.2d 108, 113]’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.)
“One well-established limit is that there is no duty to act to protect others from the conduct of third parties.” (Williams, supra, 37 Cal.App.5th at p. 663, citing Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado).) “In the case of a landlord, however, the general duty of maintenance that 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.’” (Id. at p. 664, quoting Ann M., supra, 6 Cal.4th at p. 674.) “This exception to the ‘general no-duty-to-protect rule’ comes under the “ ‘ “special relationship” doctrine’” (ibid., quoting Delgado, supra, 36 Cal.4th at p. 235), which courts have found “‘in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.’” (Ibid., quoting Delgado, supra, 36 Cal.4th at p. 235.)
“As explained more fully in Ann M., ‘the question of the scope of a landlord's duty to provide protection from foreseeable third party crime ... is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.’” (Williams, supra, 37 Cal.App.5th at p. 664, quoting Ann M., supra, 6 Cal.4th at p. 678.) Where “ ‘ “ ‘the burden of preventing future harm is great, a high degree of foreseeability may be required’ ” ’ ” (ibid., quoting Ann M., supra, 6 Cal.4th at p. 678), but “ ‘ “ ‘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.’ ” ’ ” (Ibid., quoting Ann M., supra, 6 Cal.4th at pp. 678-679.) “ ‘[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.’ ” (Ibid., quoting Ann M., supra, 6 Cal.4th at p. 679.)
“ ‘[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., supra, 6 Cal.4th at p. 676.) In Ann M., the Supreme Court held that “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” and “the 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 of which the landowner had notice. (Ann M., supra, 6 Cal.4th at p. 679.)
DISCUSSION
A. The complaint
Plaintiff asserts a negligence claim against Defendants Management and HOA, alleging the following:
On or about August 6, 2021, at or near 360 S. Kenmore Avenue, Los Angeles, California (“premises”), Plaintiff was on the first floor in his condo number 104 when he observed a mop that was thrown into his backyard on the first floor. Plaintiff went to the elevator to take the mop back to the apartment on the third-floor unit 304, where it came from. When the elevator opened Plaintiff observed Ardon, who was standing in the elevator and began accosting Plaintiff after he asked whether he was coming to get the mop. Following this Plaintiff threw the mop into the elevator and then Ardon grabbed Plaintiff and began hitting him, bit him on the right hand and gouged his right eye. When the elevator reached the third floor Ardon stepped out, leaving Plaintiff in the elevator injured. Plaintiff then called the police. The police responded and took Ardon into custody. (Complaint ¶11.)
Management, a property management company which managed, controlled, operated, maintained, supervised, monitored the premises, failed to have adequate security to prevent an altercation at the elevators or a mop being thrown from the third story balcony into Plaintiff s backyard. Management’s negligence was a proximate cause or substantial factor of Plaintiff’s injuries. (Complaint ¶¶ 2, 5, 12.)
HOA, a homeowners association which owned and controlled the premises, failed to have adequate security on the premises to deter Ardon’s aggression. Therefore, HOA was a proximate cause or substantial factor in Plaintiff’s harm. (Complaint ¶¶ 3, 6, 13.)
B. The demurrer
In their demurrer, Management and HOA argue that Plaintiff has not alleged that Management or HOA knew of facts showing Ardon’s attack on Plaintiff was foreseeable.
C. Analysis
Plaintiff
has not alleged facts showing the attack was foreseeable. Therefore, the Court sustains the demurrer
for failure to state facts sufficient to constitute a cause of action.
CONCLUSION
The Court SUSTAINS the demurrer of Defendants HOA Management Professionals, Inc. and Montclair (Kenmore) Homeowners Association, Inc. to Plaintiff Michael Levtow’s first cause of action for negligence with 30 days leave to amend.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.