Judge: Michael E. Whitaker, Case: 22STCV20281, Date: 2023-04-13 Tentative Ruling

Case Number: 22STCV20281    Hearing Date: April 13, 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

MOTIONS

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’ Second Amended Complaint (SAC) which consists of causes of action for general negligence, premises liability and wrongful death.  Plaintiffs oppose the demurrer and motion to strike.  Defendant replies.

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:  . . . (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States  . . . .”  (Evid. Code, § 452, subds. (c)-(d).)  And pursuant to Evidence Code section 453, “the trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:  (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and  (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.  (Evid. Code, § 453, subds. (a)-(b).) 

Here, under Evidence Code sections 452 and 453, the Court grants Defendant’s unopposed request for judicial notice of the (1) First Amended Complaint, (2) Notice of Ruling re Demurrer to First Amended Complaint and (3) SAC. 

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.) 

a.      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 of care 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).)  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 SAC the following in support of the first, second and third causes of action:

·         That Defendants negligently owned, leased, occupied, and/or controlled the property located at 15527 Cohasset Street, Van Nuys CA 91406.

·         That Defendants were negligent in the manner in which they owned, maintained, managed, leased, and operated the described property, so as to allow dangerous activities, including but not limited to, permitting serious drug use and activity on the premises, engaging in and facilitating drug use, drug parties and/or gatherings, and allowing the sale and distribution of illegal drugs from the premises to members in the community for their own financial profit and gain.

·         That the reason Defendants allowed said dangerous activities to exist on their premises is because tenants were willing to pay higher rent, when compared to law-abiding tenants, in exchange to continue their drug trade from the safety of the premises.

·         That Defendants had an agreement with the tenants purposefully knowing and allowing their continued drug trade in exchange that the tenants would not ask Defendants to remediate/repair minor issues in the home.

·         That Defendants were persons in the community who joined in the marketing of illegal controlled substances and/or have sought to profit from the marketing of illegal controlled substances.

·         That Defendant Braverman was a landlord and rented a portion of her premises to a known drug dealer.

·         That Defendant Braverman knew or should have known her tenant sold illegal drugs out of the premises.

·         That Defendant Braverman knew or should have known her tenant was incarcerated at the time of the incident.

·         That Defendant Braverman invited Decedent to her home for the sole purpose of using and selling Decedent illegal drugs.

·         That at the time of this incident, Defendant Braverman rummaged through her tenant's personal belongings and found a vile of Fentanyl, which displayed a large "F" in the color red on the vile.

·         That Defendant knew or should have known that the drug she offered to Decedent was Fentanyl.

·         That Defendant Braverman represented to Decedent that the drug was cocaine rather than Fentanyl and that Defendant Braverman provided the drugs anyway.

·         That Defendant Braverman knew that the Decedent had a history of drug use, and addiction, and was homeless at the time of the incident and continued to sell him illegal drugs after his father pleaded countless times with Defendant Braverman to not sell, facilitate the sale of, or provide any illegal drugs to Decedent.

·         That Defendant Braverman made Decedents position worse, i.e., created a risk of harm to Decedent when she invited him over to participate in illegal drug use and activity.

·         That at said time and place, the circumstances at the time of the incident created a special relationship between Defendant Braverman and Decedent, which gave rise to an affirmative duty to protect Decedent.

·         That said dangerous activities caused the wrongful death of Decedent Erica Malespin.

(SAC, pp. 4-6.)  The reasonable inference stemming from these allegations is that Decedent of his own volition ingested illegal narcotics, 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 have for pleading purposes asserted sufficient allegations on both issues.    

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 alleged facts which establish that there was a “special relationship” between Decedent and Defendant from which Defendant may owe a duty of care.  In particular, Plaintiffs allege in pertinent part that Defendant invited Decedent to Defendant’s home and in doing so, Decedent became an invitee of Defendant to which Defendant owed a duty of care.   (See Hoffmann v. Young (2022) 13 Cal.5th 1257, 1267 [“As to business or other invitees, landowners owed a duty to exercise ordinary care to render the premises safe and to protect the invitee from injury”].) 

            Second, Plaintiffs have 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 consuming, voluntarily, illegal narcotics that may lead to his or her demise even on property owned or controlled by the former.  But here, Plaintiffs have asserted that Defendant, after inviting Decedent onto the subject property, searched through the personal property of a tenant and gave Decedent a vile of fentanyl which Defendant represented to Decedent to be cocaine.  Moreover, Plaintiffs allege that Defendant was aware of Decedent’s history of substance abuse but nevertheless provided him with illegal narcotics which Decedent ingested, causing death.  In short, Plaintiffs’ SAC asserts that Defendant has a general duty of care because she created a risk of harm to Decedent and in turn is responsible for making Decedent’s position worse. 

Consequently, based upon the operative complaint, the Court finds that Plaintiffs have alleged sufficient facts which establishes that Defendant owed a duty of care to Decedent and in turn to Plaintiffs.

b.      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.)

            Although the Court has concluded that a duty of care arises from the special relationship between Decedent and Defendant, the Court will take the second step to determine whether the duty nonetheless should be limited under Rowland.  Thus, the Court considers the following:

·         the foreseeability of harm[4] to Decedent is high because of the nature of the conduct (engaging in the supplying and ingesting of illegal narcotics) is sufficiently likely to result in the kind of harm experienced (injuries resulting from the supplying and ingesting of illegal narcotics).  And the foreseeability of harm is heightened herein when Defendant provides the means and opportunity for Decedent to engage in the conduct that results in the alleged harm to Decedent.

·         the degree of certainty is great that Decedent would experience death as a result of ingesting illegal narcotics after Defendant, who knew or should have known of Decedent’s substance abuse history, invited Decedent onto the subject property and supplied Decedent with illegal narcotics, fentanyl. 

·         the closeness of the connection between Defendant’s conduct and the injury (death) suffered by Decedent is high as established by Plaintiffs’ allegations that Defendant created a risk of harm to Decedent and is responsible for making Decedent’s position worse.

·         the moral blame attached to Defendant’s conduct is significant in light of Defendant allegedly providing the means and opportunity for Decedent ingest illegal narcotics on Defendant’s property, resulting in the alleged harm to Decedent.

·         the public policies of preventing one from supplying and/or consuming illegal narcotics is notable.  (See, e.g., Health & Saf. Code, § 11550, subd. (a) [“A person shall not use, or be under the influence of any controlled substance”]; Health & Saf. Code, § 11378 [“a person who possesses for sale a controlled substance that meets any of the following criteria shall be punished”].) 

·         the extent of the burden to Defendant and the consequences to the community of imposing a duty to exercise due care with resulting liability for breach is low, and the Court has no information to determine otherwise. 

·         the availability, cost, and prevalence of insurance for the risk involved is unknown as the Court has no information.

The Court finds the holding in Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398 to be instructive.  In Sakiyama, the Court of Appeal held that the owner of an event space where an all-night “rave” was held had no duty to attendees who were injured and killed in an automobile accident while driving home from the rave. (Id. at p. 402.) Applying the Rowland factors, the Court of Appeal held that while it was reasonably foreseeable that rave-goers would use drugs at the rave and then get into automobile accidents, the injuries suffered “were not closely connected to [the defendant’s] conduct in renting its facility for a rave party.” (Id. at p. 409.) The Court of Appeal further noted that there was “no evidence that [the defendant] encouraged or participated in drug use.” (Ibid.) Sakiyama can be distinguished from the instant case because there, the Court of Appeal repeatedly emphasized that there was no evidence that the defendant encouraged drug use, provided drugs to partygoers, or collaborated with anyone to encourage the use of drugs at the rave. (Id. at pp. 409-411.) In contrast, Plaintiffs specifically allege that Decedent consumed illegal narcotics after being invited into Defendant’s home and after Defendant provided Decedent with illegal narcotics resulting in Decedent’s death.  Plaintiffs’ allegations against Defendant take the action out of the ambit of Sakiyama.  

            Upon considering the pleadings and arguments presented by the parties in reference to the Rowland factors, the Court finds that there is no basis to depart from the alleged duty of care imposed upon Defendant.

            Accordingly, the Court finds Plaintiffs have sufficiently plead Defendant’s applicable duty of care, and overrules Defendant’s demurrer to the SAC. 

2.      MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).)  On a motion to strike, the court may: (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.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

            Defendant seeks to strike Plaintiffs’ SAC under Code of Civil Procedure section 581, subdivision (f) which provides in part:  “The court may dismiss the complaint as to that defendant when:  . . .   Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”  Defendant contends that the SAC is untimely because Plaintiffs failed to file and serve the amended pleading within the time allotted by the Court following the Court’s ruling on the demurrer to the First Amended Complaint.  By the Court’s calculation, Plaintiffs should have filed and served the SAC on or before January 3, 2023 based upon the notice of ruling served on December 9, 2022 (20 calendar days plus 2 court days for electronic service).  But Plaintiffs served the SAC on January 5 and filed the SAC on January 6. 

            Nonetheless, the Court finds Defendant’s argument to be unsound.  First Defendant did not move to dismiss Plaintiffs’ SAC.  Instead, Defendant is seeking to “strike” the SAC which is not authorized by Section 581.  Second, the Court finds that Plaintiffs substantially complied with the Court’s order of December 9, 2022 and Defendant has not shown how the 2-3 day delay in filing and serving the SAC is prejudicial, especially when it is the public policy of California to try actions on their merits.  (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399 [there is a “strong public policy in favor of deciding cases on the merits”].)  As such, the Court exercises its discretion not to strike the SAC. 

            Defendant also seeks to strike certain allegations from the SAC because such allegations are improper, irrelevant and false.  Defendant’s contention rests primarily on the argument that Plaintiffs have not alleged facts sufficient to establish that Defendant had a duty of care to Decedent.  But for the reasons stated with respect to the Court’s analysis of the demurrer to the SAC, the Court finds that Defendant’s motion, in part, to be moot, and for pleading purposes, the Court cannot determine that such allegations are improper, irrelevant and false. 

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to Plaintiffs’ SAC and denies Defendant’s motion to strike Plaintiffs’ SAC.  Further, the Court orders Defendant to file  and serve an answer to the SAC on or before May 4, 2023. 

            The Clerk of the Court shall provide notice of the Court’s ruling.