Judge Lynne M. Hobbs, Case Number: 23STCV11693, Date: 2024-01-31 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV11693, Date: 2024-01-31 Tentative Ruling

Case Number: 23STCV11693 Hearing Date: January 31, 2024 Dept: 30

ALEX PEREYA, et al. vs KAISER FOUNDATION HOSPITALS, et al.

TENTATIVE

Defendant’s motion for judgment on the pleadings is DENIED. Plaintiff to give notice.

Legal Standard

A defendant may move for judgment on the pleadings where the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438 subd. (c)(1)(B).) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) “Such motion may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense.” (Ibid.)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Tr. (2001) 93 Cal.App.4th 902, 906.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exch. v. Superior Court (2004) 116 Cal.App.4th 446, 452.) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged complaint or be based on facts which the court may judicially notice. (§ 438(d); Tiffany v. Sierra Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 225.) A motion for judgment on the pleadings normally does not lie as to a portion of a cause of action. (Ibid.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.)

Meet and Confer

The motion is not accompanied by the declaration of defense counsel, which fails to satisfy the meet and confer requirements. (Code Civ. Proc. § 439(a)(2).) However, this is not grounds to deny the motion, and thus, the Court will turn to the merits. (Id., § 439(a)(4).) Nevertheless, defense counsel is admonished that in the future, counsel must meet and confer before filing a motion for judgment on the pleadings.

Discussion

Defendant moves for judgment on the pleadings, arguing that Plaintiff’s First Cause of Action fails to state facts sufficient to constitute a cause of action for negligence against Defendants. Defendants argue that they had no duty to protect or intervene.

“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 620.) Moreover, “[c]ourts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” (Delgado v. Trax Bar & Grill, 36 Cal.4th 224, 235.)

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. (Id.) 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.)

In addition to foreseeability, other factors "that courts consider in determining the existence and scope of a duty in a particular case are: ‘ . . . 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.'" (Id. at 237 n.15, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

Here, the FAC alleges that: Similar incidents of criminal activity had occurred both on the subject property and within the immediate vicinity (FAC, ¶ 17); Altercations, fights and similar incidents of criminal activity had occurred both on the subject property and within the immediate vicinity (FAC, ¶ 18); Defendants lacked adequate security and the few security guards on their premises lacked the training and experience to handle similar incidents of criminal activity that had occurred both on the subject property and within the immediate vicinity (FAC, ¶ 19); and Guests would park their cars in and outside of their premises resulting in arguments and criminal activity occurring. (FAC at ¶ 20.)

Plaintiffs further allege that Defendants negligently failed to: Maintain sufficient security guards on the premises (FAC, ¶ 21); Warn Plaintiff of the danger or provide any protection to Plaintiff while being guests. (Id.)

The Court finds that Plaintiff has sufficiently alleged, for purposes of a demurrer or motion for judgment on the pleadings, prior similar incidents of violent crime on Defendant’s premises in order for the special relationship exception to the “no duty to protect” rule to apply.

In opposition, Defendant argues that if an exception applies, Plaintiff must then analyze the Rowland factors. However, the Court in Delgado did analyze the Rowland factors when it held that a business owner stands in a special relationship with its patron and owes a duty to undertake reasonable steps to secure its premises against foreseeable criminal acts of third parties. It stated that “duty 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. (Gomez v. Ticor (1983) 145 Cal.App.3d 622, 631.) 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.) “Finally, the social costs of imposing a duty on landowners to hire private police forces are also not insignificant. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679.) 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." (Delgado, supra, 36 Cal.4th at 238.)

Here, Plaintiff’s allegations in the FAC satisfies both heightened foreseeability, and minimal foreseeability for purposes of a demurrer, or motion for judgment on the pleadings. It alleges that simple means could have been taken by warning of the danger, and that this would have a minimal burden on Defendant. Further, Plaintiff alleges Defendant could have had security guards, which would require heightened foreseeability. Plaintiff alleges that prior similar incidents had occurred, which satisfies heightened foreseeability. Further, if Defendant had notice of these prior similar criminal acts and failed to take any action, there would be moral blame attached. As such, the Rowland factors are subsumed under these standards, and have been satisfied by the allegations.