Judge: Michael E. Whitaker, Case: 21STCV14954, Date: 2023-02-02 Tentative Ruling

Case Number: 21STCV14954    Hearing Date: February 2, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Beverly Jean Daniel (Plaintiff) sued Defendant Los Feliz Ford, Inc. dba Star Ford Lincoln (Defendant) based on injuries Plaintiff alleges she sustained when a homeless man violently chased after Plaintiff in the parking lot of Defendant’s dealership.  Defendant demurs to Plaintiff’s entire amended complaint (FAC).  Plaintiff opposes the demurrer.  Defendant replies.

Foremost, Defendant contends that Plaintiff’s opposition is untimely. Per Code of Civil Procedure section 1005, all papers opposing a motion shall be filed with the Court and a copy served on each party at least nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).)  Based on the hearing date of February 2, 2023, Plaintiff was thus required to file and serve the opposition by no later than January 20, 2023. Plaintiff did not file the opposition until January 23, 2023, and Defendant claims did not serve the opposition until January 24, 2023. Notwithstanding, Defendant has submitted a reply to the opposition with full briefing on the merits. The Court therefore concludes that Defendant will not be prejudiced by the Court’s consideration of Plaintiff’s opposition on its merits and exercises its discretion to do so.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

1. UNCERTAINTY – PREMISES LIABILITY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Defendant demurs to the cause of action for premises liability, as reflected in Section 10(e) of Plaintiff’s first amended form complaint, for failure to allege facts sufficient to constitute a cause of action and for uncertainty.  Specifically, Defendant asserts the FAC fails to include the requisite attachment setting forth allegations forming the basis of the cause of action for premises liability.  In essence, Plaintiff has merely marked Section 10(e) in the FAC and nothing more.  In opposition, Plaintiff argues the FAC sufficiently apprises defendant of the factual basis for the claim and states that she plans to state a cause of action for premises liability against Defendant.  Accordingly, the Court will sustain the demurrer to the premises liability cause of action on the basis of uncertainty as Defendant cannot reasonably respond to a cause of action devoid of any alleged facts in support thereof.   

2. DUTY – NEGLIGENCE

            Defendant demurs to Plaintiff’s negligence cause of action contending that Plaintiff has failed to allege facts establishing a duty of care. 

“To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.”  (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter Brown).)  In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”  (Civ. Code, § 1714.)  Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.”  (Brown, supra, 11 Cal.5th at p. 214.) 

The issue before the Brown court concerned “[h]ow courts should decide whether a defendant has a legal duty to take action to protect the plaintiff from injuries caused by a third party.”   (Brown, supra, 11 Cal.5th at p. 209.)  “Duty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if the plaintiff’s interests are entitled to legal protection against the defendant's conduct.  Whether a duty exists is a question of law to be resolved by the court.”  (Brown, supra, 11 Cal.5th at p. 213 [cleaned up].)  “[W]hether to recognize a duty to protect is governed by a two-step inquiry.  First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect.  Second, if so, the court must consult the factors described in Rowland [1] to determine whether relevant policy considerations counsel limiting that duty.”  (Id. at p. 209.) 

“Section 1714 states a broad rule, but it has limits. We have explained that the law imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse.   The law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged.  Generally, the person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from that peril.”  (Brown, supra, 11 Cal.5th at p. 214 [cleaned up].)

Further, “as a general matter, there is no duty to act to protect others from the conduct of third parties.”  (Brown, supra, 11 Cal.5th at p. 214.)   But “[t]he no-duty-to-protect rule is not absolute . . . .”  (Id. at p. 215.)  “In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a “special relationship” with either the victim or the person who created the harm.”  (Ibid., emphasis added.)  

A special relationship between the defendant and the victim is one that “gives the victim a right to expect” protection from the defendant.”  (Brown, supra, 11 Cal.5th at p. 216.) “Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect. The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly.”  (Ibid. [cleaned up].)

Further, a business establishment owes a duty of care to its invitees.  “The problem requires a determination of the duty owed by the proprietor of a business establishment to his business invitees. Such a proprietor is, of course, not an insurer of the safety of his invitees, but he is required to exercise reasonable care for their safety and is liable for injuries resulting from a breach of this duty. The general duty includes not only the duty to inspect the premises in order to uncover dangerous conditions, but, as well, the duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.”  (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [cleaned up].) 

            In addition, “[a] special relationship between the defendant and the dangerous third party is one that entails an ability to control the third party’s conduct.”  (Brown, supra, 11 Cal.5th at p. 216 [cleaned up].)   In this regard, a court’s inquiry focuses on whether there is a special relationship between a defendant and the person who allegedly created the harm from which a duty arises.  In part, the inquiry turns on whether a defendant has “[p]erformed an act that increases the risk of injury to the plaintiff . . . .”  (Ibid.)

Plaintiff alleges in the FAC, in pertinent part, the following:

“To reiterate, on April 10, 2019, I was an invitee to test drive a car at Los Feliz Ford, Inc. dba Star Lincoln Ford in Glendale, California.  Upon arrival, I was encountered by a homeless man who was on the Star Lincoln Ford property.  Within a minute after getting out of my car to go to my appointment he immediately came after me and proceeded to chase me as I attempted to run inside the dealership for safety I fell and sustained a wrist fracture.  I initially went to the Star Ford Lincoln dealership on April 8, 2019 (Monday) and I was invited back by Mr. Sison to test drive the car of interest that was in the show-room (sic) on April 10, 2019 (Wednesday).

As the owner/Manager of the Los Feliz Ford, INC, dba Star Ford Lincoln dealership, Alex Tamez has/had a duty of care and obligation to an invitee to take reasonable precautions to safeguard the customers when they are on the premises to conduct business.  Security measures should have been enforced to identified (sic) this person on his lot who was not doing business.  The subject paced back and forth, wore a long scarf tied around his head making him stand out.  He did not appear to be looking at the cars, nor was he with a salesperson.  Ignoring the potential dangers of a non-customers wandering around on the dealership property poses a risk of harm to customers and invitees.  This lack of awareness and failure to identify and remove a non-customer from the premises resulted in my severe wrist injury . . . .”

(Amended Complaint, p. 8.) 

            Both Defendant and Plaintiff cite to Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291 which holds “a few sightings of nonthreatening transients” on a business’s property does not create a duty on business/property owners to adopt safety measures considered even minimally burdensome.  (Id. at p. 1305.). Defendant argues Ericson is similar to the allegations here where Plaintiff pleads that the presence of the subject homeless person on Defendant’s business premises who “paced back and forth, wore a long scarf tied around his head making him stand out . . . did not appear to be looking at the cars, nor was he with a salesperson.”  (Complaint, p. 2.)  Defendant argues these allegations are not sufficient to justify the imposition of a duty of care to protect Plaintiff. 

            The Court agrees with Defendant.  In particular, the Court finds that Plaintiff has not alleged sufficient facts to establish that Defendant owed her a duty of care.  First, Plaintiff does not allege that Defendant had reasonable cause to anticipate the acts of the third party and the probability of injury to Plaintiff resulting from such acts.  Second, Plaintiff does not allege that Defendant had an ability to control the acts of the third party or performed acts that increased the risk of harm to Plaintiff by the third party. 

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to Plaintiff’s causes of action for general negligence and premises liability in the FAC with leave to amend. Plaintiff shall file and serve an amended complaint in conformance with the Court’s ruling within 20 days of notice of the Court’s ruling. 

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.