Judge: Lynne M. Hobbs, Case: 22STCV17276, Date: 2023-07-11 Tentative Ruling

Case Number: 22STCV17276    Hearing Date: March 21, 2024    Dept: 30

RAMIRO GARCIA, AN INDIVIDUAL vs ARCHDIOCESE OF LOS ANGELES EDUCATION & WELFARE CORPORATION, A CALIFORNIA CORPORATION, et al.

TENTATIVE

Defendant Platt Security, Inc.’s demurrer is SUSTAINED without leave to amend. The Motion to Strike is DENIED as moot.  

Defendant Platt Security, Inc. is ordered to give notice.

Request for Judicial Notice

Defendant’s requests judicial notice of (1) Plaintiff’s second amended complaint; (2) Plaintiff’s discovery responses to Defendant The Roman Catholic Archbishop of Los Angeles, a Corporation Sole, For and On Behalf of San Fernando Mission Cemetery, Set One, served on July 14, 2023; and (3) Plaintiff’s Further Responses to Defendant The Roman Catholic Archbishop of Los Angeles, a Corporation Sole, For and On Behalf of San Fernando Mission Cemetery, Set One, served on August 28, 2023.

Judicial notice of Plaintiff’s discovery admissions may be taken to contradict complaint allegations. (See Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 83-84.)

The request is GRANTED pursuant to Evidence Code section 452(d) and Bockrath.

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1).) (CRC 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §436(a)-(b).) (See also Stafford v. Shultz (1954) 42 Cal.2d 767, 782 (“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded. [Citations]”).)

Discussion

Meet and Confer 

The motion is accompanied by the declaration of Frances M. O’Meara, which satisfies the meet and confer requirements. (Code Civ. Proc. §§ 430.41 and 439(a)(2).)

Merits

Defendant Platt Security, Inc., demurs to Plaintiff’s fourth and fifth causes of action for negligence and negligent hiring, supervision and retention, arguing that they fail to state facts sufficient to constitute causes of action against Defendant.

Cause of Action for Negligence

Defendant first argues that the FAC fails to allege facts showing it owed Plaintiff a duty to protect him from the assault.

“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 owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

“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.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

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.) In cases involving third parties, businesses 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.) 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, supra, 36 Cal.4th at 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.)

Here, Plaintiff’s SAC alleges that on or about May 29, 2020, Plaintiff was at 11160 Stranwood Ave., Mission Hills, CA 91345, in the State of California, County of Los Angeles(“The Subject Premises”) for his mother’s funeral services and was tasked to create and/or provide a guest list by Defendants’ employees due to Covid restrictions and limitations. Defendants Edward Zamora and Rogelio Zamora, Plaintiff’s siblings, were invited and included on the list. Defendant Rogelio Zamora Jr., Plaintiff’s nephew, was not invited and not included on the guest list.

Prior to the funeral services, Plaintiff and his siblings disagreed with the medical care, living situation and overall well-being of their mother and said disagreement created a dispute that extended beyond the siblings and onto their respective children and extended family. On prior occasions, verbal alterations between Plaintiff and his nephew, Defendant Rogelio Zamora Jr., had taken place regarding the ongoing family dispute. Due to the constant and ongoing disagreement between Plaintiff and his nephew, Defendant Rogelio Zamora, Jr., he was excluded from the guest list provided by Plaintiff to Defendants’ employees.

Plaintiff relayed to Defendants’ employees John Doe 1 and John Doe 2 that Defendant, Rogelio Zamora, Jr. is excluded from entering the subject premises.

Defendants’ employees John Doe 1 and John Doe 2 allowed and permitted uninvited guests to enter the subject premises. During the funeral service, suddenly and without warning, Plaintiff was physically assaulted by the uninvited guests with such force that Plaintiff suffered injuries and damages.

Defendants had a duty take all reasonable steps to protect the occupants of the subject premises and to confirm and/or verify all attendees were included on the guest list required and maintained by Defendants’ employees.

The Court finds that the SAC fails to provide facts showing that Defendants had a duty to protect Plaintiff from the invited and uninvited guests’ conduct. The SAC does not allege that there was foreseeable third-party criminal conduct on Defendant’s property, such that they needed to take precautionary measures. The Court notes that a heightened foreseeability is required here because the burden of preventing future harm caused by third party criminal conduct is great or onerous. Plaintiff alleges that Defendants should have been verifying that the attendees were included on the guestlist. This would be tantamount to having existing personnel do a periodic walk-through, which the Court in Delgado stated was an onerous burden. (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at 243.)

The only attempt Plaintiff has made as to showing the criminal conduct was foreseeable is including an allegation that Plaintiff relayed to Defendants’ employees John Doe 1 and John Doe 2 that Defendant, Rogelio Zamora, Jr. is excluded from entering the subject premises. However, the SAC is still missing allegations that would show that Defendant Rogelio Jr.’s criminal conduct was foreseeable to Defendant. While the SAC alleges Plaintiff relayed Rogelio Jr. was excluded from the guestlist, it fails to allege that Plaintiff relayed to Defendant, or Defendant knew, the reason why Rogelio Jr. was excluded from the guestlist. Moreover, Plaintiff’s Verified Further Response to Form Interrogatory 17.1(b), states, with respect to Request for Admission No. 8 and 9, that “Plaintiff was not threatened nor knew that he will be assaulted before the incident happened, thus he can’t inform the Cemetery for something he do [sic] not know that would happen.” (RJN No. 3.) As such, Plaintiff has admitted that he did not inform Defendant of the criminal conduct, and thus, it was not foreseeable to Defendant.

Regardless of that deficiency, the allegations do not show a history of criminal conduct on the part of Rogelio Jr. Rather, the SAC only alleges there was a verbal disagreement, which is not enough to show the criminal conduct was foreseeable. Further, Plaintiff’s Further Response to Form Interrogatory 17.1(b) states, with respect to Request for Admission No. 13, that “Plaintiff has not had a verbal disagreement with his family members.” (RJN No. 2.) Thus, the allegation relating to a family dispute are baseless. (See Bockrath, supra, 21 Cal.4th at 83-84.)

The demurrer is therefore SUSTAINED as to the negligence cause of action.

Cause of Action for Negligent Hiring, Supervision, and Retention

Defendant also demurs to the cause of action for negligent hiring, supervision, and retention on the grounds that it fails to state sufficient facts that Defendant knew or should have known its employees were unfit, or that the employees exhibited a particular risk of harm. While Plaintiff concedes that John Does 1 and 2 were at the entrance to verify that people were on the COVID guest list, Plaintiff’s purported harm was not contracting COVID, not suffering an assault.

A cause of action for negligent hiring, supervision, or retention of an employee requires the following elements: (1) the employer hired employee; (2) the employee was/became unfit or incompetent to perform the work for which he was hired; (3) the employer knew or should have known the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff; and (5) the employer’s negligence in hiring/supervising/ retaining the employee was a substantial factor in causing plaintiff’s harm. (CACI No. 426; see also Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring or retaining the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.) Negligent hiring, retention, or supervision is a form of direct negligence. (Ibid.)

Here, the SAC fails to state facts sufficient to support a cause of action for negligent hiring, supervision and retention. The SAC merely contains conclusory allegations that Defendants knew or should have known that their employees, Does 1 and 2, were incompetent and unfit. The SAC fails to state how Defendant knew or should have known the employees were unfit. Further, the SAC does not allege what the particular risk of harm was. In fact, the SAC alleges that Defendant had a guestlist due to Covid, not to protect the guests from criminal conduct. In turn, the emplo

create a harm that the attendees would contract Covid, not the particular harm Plaintiff suffered here. Therefore, the demurrer is also SUSTAINED as to the cause of action for negligent hiring, supervision and retention.

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 not attempted to explain how the pleading can be amended successfully. In addition, Defendant’s previous motion for judgment on the pleadings has previously been granted as to the negligence cause of action, and Plaintiff has failed to correct the deficiencies. Lastly, the discovery responses cited to show there is no reasonable possibility of successfully amending the pleadings. As such, leave to amend will not be granted.

As the demurrer is sustained, the motion to strike is denied as moot.

Conclusion

Based on the foregoing, Defendant’s demurrer is SUSTAINED without leave to amend. The motion to strike is DENIED as MOOT.