Judge Loren G. Freestone, Case Number: 37-2024-00005894-CU-PO-CTL, Date: 2024-06-14 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2024-00005894-CU-PO-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2024-00005894-CU-PO-CTL DAVIS VS 12905 MAPLEVIEW CA LP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant FPI Management Inc.'s demurrer to Plaintiff Reg'Zanay Davis' complaint is OVERRULED.

Preliminary Matters All hearings must be properly noticed. (Code Civ. Proc., § 1010; Cal. Rules of Court, rules 3.1110(a)–(b), 3.1112(a)(1).) All hearings must also be properly reserved. (Super. Ct. San Diego County, Local Rules, rule 2.1.19.A.) 'Failure to reserve a date for hearing will result in the demurrer . . .

not being heard.' (Ibid.) Defendant 12905 Mapleview (CA) LP initially noticed a demurrer for August 30, 2024. FPI's demurrer was initially noticed for October 25, 2024. Those hearing dates were vacated when the case was reassigned to Department 64.

FPI thereafter reserved and re-noticed its demurrer for June 14, 2024. However, Mapleview did not similarly reserve and re-notice its demurrer. As such, only FPI's demurrer will be heard.

Analysis Davis alleges two causes of action FPI: negligence and premises liability.

'The essential elements for both negligence and premises liability are duty, breach, causation, and damages.' (Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal.App.5th 843, 850.) FPI demurs on the ground that Davis has failed to allege facts establishing a duty on its part.

'A landlord generally owes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord's control against foreseeable criminal acts of third parties.' (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) 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. In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. 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.' (Id. at pp. 1213–1214.) Calendar No.: Event ID: TENTATIVE RULINGS

3133260 29 CASE NUMBER: CASE TITLE: DAVIS VS 12905 MAPLEVIEW CA LP [IMAGED] 37-2024-00005894-CU-PO-CTL Thus, in order to impose a duty on a landlord to not rent a unit to an applicant, the harm posed by the third-party must be 'extraordinarily foreseeable.' (Castaneda, supra, 41 Cal.4th at pp. 1216–1218.) Similarly, to impose a duty on a landlord to evict a tenant, the harm posed by the third-party must be 'highly foreseeable.' (Id. at pp. 1219–1222.) However, a lesser showing of foreseeability is required to impose a duty on a landlord to take 'minimally burdensome measures, such as investigating an incident between tenants, threatening to evict a tenant because of an incident, or calling the police after an incident has been reported. (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1467–1468.) Sometimes the risk of harm is not foreseeable by any measure, such that the landlord did not owe a duty of care as a matter of law. For example, it is not reasonably foreseeable that a tenant will shoot someone simply because he owns a gun and has engaged in some peculiar behavior. (Davis v. Gomez (1989) 207 Cal.App.3d 1401, 1403, 1406.) Nor is it reasonably foreseeable that a tenant will physically attack someone merely based because he has previously splashed mud on their car and subjected them to a single racial epithet, among other non-violent acts of harassment. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 584, 595–596.) Other times, the risk of harm is very foreseeable. In Madhani v. Cooper (2003) 106 Cal.App.4th 412, for example, one tenant (Moore) had on several occasions yelled at two other tenants (Madhani and her mother Bana) and said 'bad things,' blocked their way as they tried to walk down the stairs, and either shoved or bumped into them. (Id. at pp. 413–414.) The landlord (Cooper) was notified about these incidents and promised to take care of the situation, but never took any action. (Ibid.) One day when Madhani returned home from shopping, Moore approached her again and ultimately threw her down the stairs. (Id. at pp. 414–415.) The trial court granted summary judgment, but the court of appeal reversed. (Id. at pp. 415–418.) The court stated that it was 'difficult to imagine?? a case in which the foreseeability of harm could be more clear.' (Id. at p. 415.) The court noted that it was not dealing with 'an isolated ??incident or extraordinary behavior on the part of Moore,' but rather 'repeated acts of assault and battery.' (Ibid.) The court did 'not believe a reasonably thoughtful landlord would accept as commonplace the repeated verbal and physical abuse of one tenant by another, but would act to put an end to such occurrences.' (Id. at p. 416.) And sometimes the facts are somewhere in between, such that the landlord had a duty to take some action short of eviction. In Barber, supra, 151 Cal.App.4th 1456, for example, one tenant (Carol)'s son (Daniel) brandished a shotgun in an angry and threatening manner towards another tenant (Jean) and her daughter (Chanda). (Barber, supra, 151 Cal.App.4th at pp. 1460.) The landlord (Chang) was notified about the incident. (Id. at pp. 1460–1461.) The landlord, however, claimed he could not take any action unless Jean filed a police report or obtained a restraining order, and simply suggested that she speak with Carol. (Id. at p. 1461.) A few weeks later, Daniel shot a different individual (Chanda's longtime companion, Leroy). (Ibid.) The trial court granted summary judgment on the basis Chang did not owe Leroy a duty of care, but the court of appeal reversed. (Id. at pp. 1465–1470.) The court held that even though the shotgun was not fired during the first incident, it was sufficient to 'alert a reasonably prudent landlord [that the tenant's son] posed a risk of serious injury to other tenants and invitees.' (Id.

at p. 1466–1467.) Although Chang argued that the prior incident was not sufficient to establish 'heightened foreseeability,' the court noted that Leroy had broadly alleged in his complaint that Chang owed him 'a duty to take reasonable action to protect plaintiff from harm,' which was sufficient to cover all 'minimally burdensome measures.' (Id. at pp. 1467–1469.) The court held that Chang 'failed to establish that simple protective measures such as calling the police after Daniel's brandishing attack were unreasonable or too burdensome as a matter of law.' (Id. at p. 1468.) Here, similar to Barber, Davis has broadly alleged that FPI 'had a duty to protect the residents of the Woodglen Apartments-including Plaintiff-from racial animus and violence.' This is sufficient to allege not only a duty to evict Gonzalez and LNU, but also less burdensome measures.

Davis alleges that Gonzalez and his family, as well as LNU, were her neighbors and were known for their racist and abusive behavior in the community. Before the attack, numerous residents had allegedly complained to FPI about their racist, abusive, and dangerous behavior. Additionally, on at least one Calendar No.: Event ID: TENTATIVE RULINGS

3133260 29 CASE NUMBER: CASE TITLE: DAVIS VS 12905 MAPLEVIEW CA LP [IMAGED] 37-2024-00005894-CU-PO-CTL occasion, they hurled racial slurs at other residents in the present of FPI staff. The allegations of 'abusive' and 'dangerous' behavior distance this case from Davis and Andrews and make it more analogous to Madhani and Barber. As such, Davis has sufficiently alleged that FPI had a duty to do at least something to prevent the attack.

FPI takes issue with Davis not specifying in her complaint what that 'something' entails, not specifying the nature of Gonzalez's and LNU's prior conduct giving rise to their duty, and not alleging specific facts in support of the other elements of her claims. However, a 'party may plead negligence in general terms.' (Barber, supra, 151 Cal.App.4th at p. 1469, fn. 2.) As such, for purposes of this demurrer, Davis' allegations are sufficient.

Conclusion Davis has sufficiently alleged that FPI owed her a duty, as well as sufficiently alleged the other elements of her negligence and premises liability claims. The demurrer is therefore overruled.

FPI shall file an answer within 10 days.

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