Judge: Michael E. Whitaker, Case: 21STCV14954, Date: 2023-05-17 Tentative Ruling

Case Number: 21STCV14954    Hearing Date: May 17, 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 trespasser

violently chased after Plaintiff in the parking lot of Defendant’s dealership.  Defendant demurs to

Plaintiff’s entire Second Amended Complaint (SAC) and to the cause of action for Premises Liability.  Plaintiff opposes the demurrer.  Defendant replies. 

Based on Plaintiff’s untimely filing of her opposition, and as a result, Defendant’s late filing of its reply, the Court continued the hearing for the instant motion from May 1, 2023, to May 17, 2023, to allow the Court time to review the opposition and reply. 

ANALYSIS

1.      DEMURRER

“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.) 

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242, see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take steps to prevent the wrongful acts of a third party is imposed only where such conduct can be reasonably anticipated].)  Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)

            Defendant demurs to Plaintiff’s SAC including the premises liability claim 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, emphasis added [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’s allegations regarding Defendant’s duty of care owed to Plaintiff are set forth on pages 5 and 6 of the SAC.  Although Plaintiff alleges facts which establish a special relationship between Plaintiff and Defendant – business proprietor and customer, Plaintiff fails to allege that Defendant had reasonable cause to anticipate the acts of the third party trespasser  and the probability of injury resulting therefrom.  To the contrary, Plaintiff tacitly concedes that Defendant did not have reasonable cause to anticipate the actions of the third party trespasser and the probability of the injury allegedly suffered by Plaintiff.  Plaintiff alleges in the SAC, in pertinent part, the following:

“Star Ford and its management are incapable of foreseeing a potential threat of violence to invited or uninvited guests on their property because there is no surveillance of any kind.  Star Ford has no way of knowing what was or is a potential threat or not.  This makes the business negligent in protecting the invited customers and or general customers who visit Star Ford.  As a result of Star Ford not having a system in place that documents prior situations or warns invitees, it had no means that could be taken for Plaintiff to avoid being injured.  The manager of Star Ford (Alex Tamez) stated that he had never heard about the incident or knew that a customer was injured which strongly confirms that there is no system in place to report dangerous events or trespassers that could potentially have a high probability for premises liability.”

(SAC, p. 6.)  Further, Plaintiff’s allegations illuminates her circular reasoning.  She states that because Defendant’s failure to install a surveillance system and implement a regime to record dangerous events, she was harmed.  Plaintiff assumes that the lack of the “safety measures” would have prevented the injuries she claims resulted from being chased by the third party trespasser.  Yet, the Court finds no factual allegation asserted by Plaintiff to that end, especially when she asserts being accosted “within minutes of arrival” on Defendant’s property.  (See SAC, p. 5.) 

            In part, Defendant relies upon 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 herein, and as such, Defendant had no duty to adopt safety measures to protect against the acts of the trespasser.    

            In opposition, Plaintiff attempts to distinguish the facts in Ericson to those alleged in the SAC.  However, Plaintiff fails to articulate how the amended complaint, which fails to allege any prior instances of criminal activity at the subject premises, establishes the requisite  foreseeability especially when in Ericson previous sightings of transients, as well as multiple reported thefts, were insufficient.  (See Ericson v. Federal Express Corp., supra,  162 Cal.App.4th. at pp. 1305-1306.)   Apart from the incident involving Plaintiff, Plaintiff has failed to describe any prior occurrences at the subject premises that would indicate a violent third-party assault by a transient was forseeeable, imposing a duty of care on Defendant. 

            Plaintiff further assumes “given the increased number of the homeless on the rise in Glendale” that there have likely been more negative encounters with transients at the subject premises.  (See Opposition, pp. 8-9.)  First, Plaintiff’s contention is pure speculation absent any factual or evidentiary support.  Second, Plaintiff fails to assert in the SAC that the City of Glendale has experienced an increase in its transient population and how such increase equates to foreseeability of violence occurring on Defendant’s property.  Lastly, as Defendant notes in reply, the mere presence of transients and the current crime rates in the City of Glendale are insufficient to establish the requisite foreseeability for Defendant to have a duty of care vis-à-vis Plaintiff.  (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1191 [disapproved on different grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 836, 853, fn. 19].)  

            In short, the Court agrees with Defendant, finding that Plaintiff has failed to state a cause of action for premises liability against 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 trespasser.

2.      LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, the burden is on Plaintiff to establish that the SAC can be amended successfully.  In her opposition, Plaintiff asks the Court to grant her leave to amend.  However, Plaintiff fails to establish with specificity in what manner the SAC could be amended to properly allege a duty against Defendant.  Accordingly, the Court finds Plaintiff has failed to meet her burden and denies her leave to amend the SAC.

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to the entire Second Amended Complaint without leave to amend.  Defendant shall provide notice of the Court’s ruling and file a proof of service of such.