Judge: Lisa R. Jaskol, Case: STCV01951, Date: 2023-09-07 Tentative Ruling
Case Number: STCV01951 Hearing Date: September 7, 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 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 August 1, 2023, Emotional Health Association Corporation dba Share! (“EHA”) filed a demurrer to be heard on September 7, 2023. On August 22, 2023, Plaintiff filed an opposition. On August 30, 2023, EHA filed a reply.
Trial is currently scheduled for December 7, 2023.
PARTIES’ REQUESTS
EHA requests that the Court sustain the demurrer.
Plaintiff requests that the Court overrule the demurrer.
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:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(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.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.”
(Code Civ. Proc., § 430.10.)
“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 contentions, deductions, or conclusions of facts or law).” (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) (Cal. Practice Guide) ¶ 7:43, p. 7(l)-25, emphasis omitted.)
B. Premises liability
“‘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 first amended complaint
Plaintiff alleges the following:
Each Defendant owned, leased, occupied, or controlled the property located at 3241 Flower St, Lynwood, CA 90262-4226 (“the premises”). (FAC ¶ 6.)
On April 2, 2020, Plaintiff was a resident at the premises. Plaintiff was standing near a window on the second floor when, suddenly and without warning, Burks, an individual also residing at the premises, pushed Plaintiff out of the window (“the incident”). (FAC ¶ 9.)
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. Jenkins and EHA failed to take reasonable actions to prevent the incident. (FAC ¶ 9.)
Jenkins and EHA negligently owned, leased, occupied, and controlled the premises and allowed Burks to enter and remain on the premises after Defendants received notice that Plaintiff feared for her safety. In addition, Jenkins and EHA negligently owned, leased, occupied, and controlled the premises by failing to ensure the property was maintained in a reasonably safe condition, including but not limited to proper installation and maintenance of the windows and/or screens. (FAC ¶¶ 10-12.)
Jenkins and EHA failed to protect Plaintiff from physical harm by Burks despite receiving actual and constructive notice that Plaintiff feared for her safety. (FAC ¶ 17.) Burks’ 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. (FAC ¶ 20.) Jenkins and EHA had actual and constructive notice of Burks’s dangers tendencies prior to the incident. (FAC ¶ 21.)
B. The attack was not reasonably foreseeable
“ ‘[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.)
Here, even accepting as true the complaint’s allegations that EHA had received actual or constructive notice that Plaintiff feared for her safety and believed Burks had “dangerous proclivities,” it was not foreseeable that Burks would push Plaintiff out of a window. The complaint does not allege that Defendants were aware of any prior violent or assaultive behavior by Burke. Burks’s actions could not have been reasonably anticipated based on the information Plaintiff allegedly provided to Defendants about Burks’s “dangerous proclivities.”
While the complaint alleges that Jenkins and EHA knew or should have known Burks would attack Plaintiff, the allegations are “contentions, deductions, or conclusions of fact” which the Court may not consider. (Cal. Practice Guide, supra, Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25, emphasis omitted.)
The complaint fails to allege facts establishing that the attack was sufficiently foreseeable to impose a duty on EHA. Therefore, the Court sustains the demurrer.
CONCLUSION
The Court SUSTAINS the demurrer of Defendant Emotional Health Association Corporation dba Share! with 30 days leave to amend.
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.