Judge: Michael E. Whitaker, Case: 22STCV20281, Date: 2022-12-09 Tentative Ruling

Case Number: 22STCV20281    Hearing Date: December 9, 2022    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

Plaintiffs Luigi Ibarra, individually, Luigi Ibarra on behalf of the Estate of Erico Malespin, and Brisa Malespin (collectively, Plaintiffs) sued Defendant Francine Braverman (Defendant) based on the death of Erico Malespin (Decedent).  Defendant demurs to Plaintiffs’ first amended complaint (FAC) which consists of causes of action for general negligence, premises liability and wrongful death.  Plaintiffs oppose the demurrer.  Defendant replies.

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. DUTY – INITIAL ASSESSMENT

            Defendant demurs to the first, second and third causes of action for general negligence, premises liability [1] and wrongful death [2] based on Plaintiffs’ failure to allege an applicable duty owed to Decedent by Defendant.

“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, Civil Code section 1714 states in pertinent part:  “Everyone 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, subd. (a), emphasis added.)  Hence, 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.) 

Yet “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 [3] 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.   For example, a person who stumbles upon someone drowning generally has no legal duty to help the victim. The same rule applies to a person who stumbles upon a mugging, for as a general matter, there is no duty to act to protect others from the conduct of third parties. This general rule, we have explained, derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter.  (Brown, supra, 11 Cal.5th at p. 214 [cleaned up].) 

Plaintiffs allege in the FAC the following in support of the first, second and third causes of action:

• “Defendants negligently owned, leased, occupied, and/or controlled the property located at 15527 Cohasset Street, Van Nuys CA 91406 . Defendants were negligent in the manner in which they owned, maintained, managed, leased, and operated the described property, so as to allow a dangerous condition to exist by allowing serious drug use and activity on its premises. At said time and place, Defendants were present and engaged in the drug use and activity with decedent, Erica Malespin. Said dangerous condition caused the wrongful death of Plaintiff Luigi Ibarra's and Plaintiff Brisrna Malespin's son, Erica Malespin.”

   

• “Defendants negligently owned, leased, occupied, and/or controlled the property located at 15527 Cohasset Street, Van Nuys CA 91406. Defendants were negligent in the manner in which they owned, maintained, managed, leased, and operated the described property, so as to allow a dangerous condition to exist by allowing serious drug use and activity on its premises. At said time and place, Defendants were present and engaged in drug use and activity with decedent Erico Malespin. Said dangerous cond. caused the wrongful death of Erico Malespin.”

• “Plaintiffs further allege that: 1. Defendants negligently owned, leased, occupied, and/or controlled the property located at 15527 Cohasset Street, Van Nuys CA 91406. 2. Defendants were negligent in the manner in which they owned, maintained, managed, leased, and operated the described property, so as to allow a dangerous condition to exist by allowing serious drug use and activity on its premises. 3. At said time and place, Defendants were present and engaged in the drug use and activity with decedent, Erico Malespin. 4. Said dangerous condition caused the wrongful death of Erico Malespin.”

   

  (See FAC, pp. 4-6.)   The reasonable inference stemming from these allegations is that Decedent of his own volition ingested drugs, causing his death.  Thus, it could be argued that Decedent “brought the injury upon himself,” willfully or by want of ordinary care, from which Defendant would not have a duty of care toward Defendant under Section 1714.

   

              Notwithstanding, a court may still find that Defendant owed a duty of care to Decedent if a special relationship existed between Decedent and Defendant, or if there were circumstances giving rise to an affirmative duty to protect Decedent.  With respect to whether Plaintiffs have alleged sufficient facts from which a court could determine a duty of care was owed to Decedent, this Court finds that Plaintiffs fail on both fronts. 

   

First, a special relationship between Defendant and Decedent would be 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].) 

Here, Plaintiffs have not alleged facts which establish that there was a “special relationship” between Decedent and Defendant from which Defendant may owe a duty of care.  Further, Plaintiffs fail to allege why Decedent was at the subject property:  was Decedent a tenant?  was Decedent an invitee?  In short, it is unclear as to whether a “special relationship” existed between Defendant and Decedent.

            Second, Plaintiffs fail to allege that there were “circumstances giving rise to an affirmative duty to protect Decedent.”  In general, one person owes no duty of care to protect or shield another from ingesting, voluntarily, drugs that may lead to his or her demise even on property owned or controlled by the former.  Thus, missing from Plaintiffs’ allegations is two-fold:  what acts or omissions on Defendant’s part created the peculiar risk of harm (death) to Decedent,  and what acts or omissions on the part of Defendant made Decedent’s position worse?  With that backdrop, Plaintiffs’ allegations beg the following questions: 

• Was the “serious drug use and activity” on the subject property a one-time event or a recurring event? 

   

• What “drug use and activity” did Defendant participate with Decedent?  And was the participation a one-time event or a recurring event? 

In opposition, Plaintiffs argue that Defendant is liable as a landlord and rely upon various California appellate opinions.  But Plaintiffs fail to allege in the FAC that Defendant is a landlord as opposed to other potential bases for why Defendant may have been in possession, custody or control of the subject property.

Additionally, Plaintiffs contend that Defendant is liable based upon Health and Safety Code section 11701 which provides in whole: 

The purpose of this division is to provide a civil remedy for damages to persons in a community injured as a result of the use of an illegal controlled substance. These persons include parents, employers, insurers, governmental entities, and others who pay for drug treatment or employee assistance programs, as well as infants injured as a result of exposure to controlled substances in utero (“drug babies”). This division will enable them to recover damages from those persons in the community who have joined the marketing of illegal controlled substances. A further purpose of this division is to shift, to the extent possible, the cost of the damage caused by the existence of the market for illegal controlled substances in a community to those who illegally profit from that market. The further purpose of this division is to establish the prospect of substantial monetary loss as a deterrent to those who have not yet entered into the distribution market for illegal controlled substances. The further purpose is to establish an incentive for users of illegal controlled substances to identify and seek payment for their own treatment from those dealers who have sold illegal controlled substances to the user in the past.

(Health & Saf. Code, § 11701, emphasis added.)  Plaintiffs’ reliance on Section 11701 is misplaced.  First, Plaintiffs have not alleged that Defendant is a person in the community who has joined in the marketing of illegal controlled substances or has sought to profit from the marketing of illegal controlled substances.  But most important, Section 11701 does not supplant Plaintiffs legal obligation to assert sufficient factual allegations from which a duty of care would arise between Defendant and Decedent.  

Consequently, based upon the operative complaint, the Court finds that Plaintiffs have not alleged sufficient facts which establishes that Defendant owed a duty of care to Decedent and in turn to Plaintiffs.

2. ROWLAND FACTORS – SECONDARY ASSESSMENT

The multifactor test set forth in Rowland was not designed as a freestanding means of establishing duty, but instead as a means for deciding whether to limit a duty derived from other sources.  . . .  We explained that the basic policy of this state set forth by the Legislature in section 1714 is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property.  And while there are exceptions to section 1714’s general rule, in the absence of a statutory provision declaring an exception, no such exception should be made unless clearly supported by public policy.”  (Brown, supra, 11 Cal.5th at p. 217 [cleaned up].)  To wit, “Rowland itself referred to this multifactor test as a guide for determining whether to recognize an “exception” to the general duty of care under section 1714.  [T]he Rowland factors serve to determine whether an exception to section 1714’s general duty of reasonable care is warranted, not to determine whether a “new duty” should be created.”  (Id. at p. 218 [cleaned up].)  In sum, “Rowland is a guide to determining when to create exceptions from duties otherwise established.”  (Id. at p. 219.) 

“To depart from the general principle that all persons owe a duty of care to avoid injuring others, . . .  , involves the balancing of a number of considerations:  the foreseeability of harm to the plaintiff, 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.”  (Brown, supra, 11 Cal.5th at p. 217 [cleaned up].)  And so “[a] court might conclude that duty should not be imposed because, for example, the type of harm the plaintiff suffered was unforeseeable, or because there was no moral blameworthiness associated with the defendant's conduct, notwithstanding the defendant's special relationship to the plaintiff. Put differently, even when a special relationship gives rise to an affirmative duty to protect, a court must still consider whether the policy considerations set out in Rowland warrant a departure from that duty in the relevant category of cases.”  (Id. at p. 222.)

But here, the Court finds the application of the Rowland factors in the second step of the requisite duty analysis to be unnecessary at this juncture because the Court has not found that a duty of care arose between Defendant and Decedent.    

CONCLUSION AND ORDER

Therefore, the Court sustains Defendant’s demurrer to Plaintiffs’ first amended complaint for negligence, premises liability and wrongful death with leave to amend.  Further, the Court orders Plaintiffs to file and serve an amended complaint in conformance with the Court’s ruling within 20 days of notice of said ruling.

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