Judge Lynne M. Hobbs, Case Number: 21STCV29330, Date: 2023-08-16 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV29330, Date: 2023-08-16 Tentative Ruling

Case Number: 21STCV29330 Hearing Date: February 20, 2024 Dept: 30

MAJORLIE HURTADO, et al. vs WU CHUNHUA, et al.

TENTATIVE

Defendant Airbnb’s demurrer is SUSTAINED without leave to amend. Moving party to give notice.

Legal Standard

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. 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.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Request for Judicial Notice

Airbnb requests judicial notice of its Terms of Service that was in effect on August 30, 2020, which is the date of Decedent Gustavo Lopez’s death as alleged in the TAC.

The request for judicial notice of Airbnb’s Terms of Service is granted pursuant to Evidence Code section 452(h). However, the Court will not take judicial notice of the truth of the matters asserted within the documents.

Meet and Confer

Before filing a demurrer, demurring party is also required to meet and confer in person, by telephone, or by videoconference, with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code Civ. Proc., § 430.41(a).)

The meet and confer requirement has been met. (Minor Decl., ¶ 6; Exh. B; See Code Civ. Proc., § 430.41(a)(3)(B).)

Discussion

Defendant Airbnb demurs to all four causes of action against it in Plaintiffs’ third amended complaint (TAC): wrongful death, survival, negligence and premises liability, arguing the TAC fails to state sufficient facts to constitute causes of action.

I. Statute of Limitations

Airbnb first demurs on statute of limitations grounds, arguing that the statute of limitations on all four of Plaintiffs’ claims against Airbnb has expired.

CCP section 335.1 provides that an action for injury to, or for the death of, an individual caused by the neglect of another must be brought within two years. (See Code Civ. Proc. § 335.1.) The negligence claim accrues on the date of injury. (See Rodibaugh v. Caterpillar Tractor Co. (1964) 225 Cal.App.2d 570, 573.)

Here, the TAC alleges that Decedent’s life was taken on August 30, 2020. (TAC., ¶ 1.) Plaintiff’s claims thus accrued on that date. Based on this date, Plaintiff had until August 2022 to bring the claims against Airbnb. However, Plaintiff named Airbnb on January 13, 2023.

In opposition, Plaintiff argues that the TAC relates back to the filing of the complaint, on August 9, 2021, making Plaintiff’s causes of action against Airbnb, Inc. timely.

Code of Civil Procedure section 474 provides in relevant part:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly . . .

“Code of Civil Procedure section 474 is to be liberally construed. Nevertheless, its requirements, as so construed, are mandatory. Failure to comply with Code of Civil Procedure section 474 does not prevent a plaintiff from filing an amendment adding a new defendant; however, it does prevent the amendment from relating back” (Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1143-1144.)

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)

“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Ibid.)

Here, Plaintiff did not substitute a Doe defendant for Airbnb, but rather added Airbnb to the amended complaint. Therefore, because Plaintiff did not comply with Code of Civil Procedure section 474, amending the complaint to name Airbnb did not relate back. (Fireman's Fund Ins. Co., supra, 114 Cal.App.4th at 1143-1144.)

As a result, Airbnb’s demurrer is SUSTAINED on this basis.

II. Duty

Airbnb also argues that Plaintiff failed to properly plead the element of duty.

“The elements of a cause of action for negligence are well established. They are (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, internal quotations omitted.) The elements of negligence and premises liability are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.)

“[W]hile negligence is ordinarily a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1096.) Whether one owes a duty to another must be decided on a case-by-case basis. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46.) Every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being harmed as a result of their conduct. (Id.)

An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.) Generally, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct unless an exception applies. (Id.) One exception is when there is a special relationship. A person may have an affirmative duty to protect the victim of another’s harm if that person has a special relationship with the victim or the person who created the harm. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) A special relationship is one that would give a victim a right to expect protection, such as parent-child relationships, common carrier-passenger relationships, and innkeeper-guest relationships. (Id at p. 620.)

In cases involving third parties, businesses (because they generally stand in a special relationship with their tenants, patrons, or invitees) have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control, against reasonably foreseeable criminal acts of third parties. (Delgado v. Trax Bar & Grill, 36 Cal.4th 224, 235.) While “the modern landlord has a duty to take reasonable precautions against foreseeable criminal acts, courts have been careful to avoid imposing standards of conduct which would effectively hold the landlord liable for all crimes committed on the premises.” (Resenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1095.) Recent decisions “have linked the level of security the landlord must provide to the degree of foreseeability of the harm.” (Ibid.) The foreseeability of harm determines the scope of a landowner’s duty, and “[t]he more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it.” (Vasquez, supra, 118 Cal.App.4th 269, 285.) “[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.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 238.

Here, Plaintiff’s TAC fails to provide facts showing that Defendant had a duty to protect Plaintiff from the guests’ criminal conduct. Generally, Defendant has no duty to control the conduct of third parties. The TAC does not allege that there was foreseeable third-party criminal conduct on Defendant’s property, such that they needed to take precautionary measures. While the TAC alleges that the subject property was dangerous due to various conditions, including, unsafe large house parties, party guests with known gang affiliations, known propensities to carry or conceal deadly weapons, including guns, and known propensities to incite violence or physical altercations (TAC, ¶ 36), there are no specific allegations relating to crimes that had occurred on the property in the past. A heightened foreseeability is required “in circumstances in which the burden of preventing future harm caused by third party criminal conduct is great or onerous” (i.e. where a plaintiff asserts a defendant had a legal duty to provide security guards, bright lighting, activate and monitor security cameras, provide periodic “walk-throughs” by existing personnel, or provide stronger fencing). (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243.) Heightened foreseeability is “shown by prior similar criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location.” (Id.) The TAC alleges that Defendants failed to hire security and supervise the party (TAC, ¶ 36), but has not shown heightened foreseeability.

In opposition, Plaintiff argues that the negligent undertaking exception to the “no-duty-to-protect rule” applies.

One who, “having no initial duty to do so, undertakes to provide protective services to another, will be found to have a duty to exercise due care in the performance of that undertaking if one of two conditions is met: either (a) the volunteer’s failure to exercise such care increases the risk of harm to the other person, or (b) the other person reasonably relies upon the volunteer’s undertaking and suffers injury as a result.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249.) In a situation where an actor has undertaken to render services for the protection of a third person, the negligent undertaking doctrine may apply. (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 289.)

“To establish a duty of care to a third person based on the negligent undertaking doctrine, a plaintiff must show: (1) the defendant undertook to render services to another; (2) the services were of the kind the defendant should have recognized as necessary for the protection of third persons; and (3) either (a) the defendant's failure to exercise reasonable care increased the risk of harm beyond what existed without the undertaking, (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) a harm was suffered because the other or third persons relied on the undertaking.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 83-84.) Plaintiffs alleging a defendant had a duty to protect them must establish: (1) that an exception to the general no-duty-to-protect rule applies; and (2) that the Rowland factors support imposition of the duty. (Id., at 77.)

“ ‘[T]he scope of any assumed duty depends upon the nature of the undertaking.’ [Citation.] The defendant ‘must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative duty to perform that undertaking carefully.’ [Citation.]” (Id., supra, at p. 84.)Plaintiff contends Airbnb, Inc. increased the risk of harm when they provided the Home to rent on their platform resulting in the property being rented to throw a party which resulted in Decedent’s death. And that had they not provided the mechanism of the Home by which to be rented then Decedent would not have been shot and killed. Setting aside the fact that these allegations are nowhere in the TAC, Plaintiff fails to explain the correlative relationship of how the services provided by Airbnb were of the kind that Airbnb should have recognized as necessary the duty of protection for third persons (Barenborg, supra, 33 Cal.App.5th at 83-84). Not only that, Plaintiff has failed to plead or explain what negligent act Airbnb took that increased the risk of harm beyond what existed without the undertaking, or how the undertaking was relied upon.

As the Court has found that there is no exception, the Rowland factors do not need to be analyzed.

Therefore, Plaintiff’s TAC fails to state facts sufficient to show Defendant had a duty to protect Plaintiff or that an exception applies. As the survival and wrongful death causes of action depend on the negligence causes of action, the demurrer is SUSTAINED on this ground.

As a side note, Airbnb argues that Plaintiffs’ allegations are contrary to its Terms of Service, which govern use of the Airbnb platform and make clear that Airbnb does not own, control, manage, or operate any properties listed on its platform. (RJN, Ex. 1.) However, as discussed above, the Court does not take judicial notice of the truth of the matters asserted within the Terms of Service.

III. Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Plaintiff requests leave to amend. However, Plaintiff has failed to show how the pleading can be amended successfully. While Plaintiffs have shown there is a reasonable possibility of amending the complaint to cure the statute of limitations defect, Plaintiffs have failed to explain how they can amend the negligence causes of action to properly allege Defendant Airbnb owed them a duty. Thus, leave to amend is denied.