I. BACKGROUND 

On September 27, 2021, plaintiffs Adina Avila (“Avila”), Aaron Guerra, and Margarita Chavez (collectively, “Plaintiffs”) filed this action against defendants, Daniel Chan (“Chan”), Chanchenda Hou, Chanvachana Hou, Doe Attacker, and Does 1 to 20 for injuries arising from a shooting by Doe Attacker.  

Plaintiffs set collectively set forth three causes of action for: (1) general negligence against Chan, Chanchenda Hou and Chanvachana Hou, Doe Attacker, and Does 1 to 20, (2) intentional tort against Doe Attacker and Does 1 to 20, and (3) battery against Doe Attacker and Does 1 to 20. As to remainder, Plaintiff Avila sets forth an additional three causes of action for: (4) intentional infliction of emotional distress against Doe Attacker and Does 1 to 20, (5) negligent contact against Doe Attacker and Does 1 to 20. Lastly, Plaintiffs collectively set forth the sixth cause of action for premises liability against all defendants. 

On December 8, 2023, Plaintiffs filed amendments to complaint naming Carolyn Thao Nguyen as Trustee of the Nguyen Huynh Carolyn Trust dated October 11, 2018 (“Nguyen Trust”) as Doe 1, and Carolyn Nguyen (“Nguyen”) as Doe 2.  

Nguyen Trust (Doe 1) and Nguyen (Doe 2) (collectively, “the Nguyens”) now demur to Plaintiffs’ complaint on the grounds that the Doe amendments are barred by the statute of limitations, and that the complaint is uncertain and fails to state sufficient facts to constitute a cause of action against them. The Nguyens also filed a motion to strike punitive damages.  

Any opposition was due on or before April 8, 2024; none was filed. 

II. REQUEST FOR JUDICIAL NOTICE 

In connection with the demurrer, the Nguyens request the Court take judicial notice of the Trust Transfer Deed dated October 11, 2018 for the property commonly known as 2709 and 2711 East 7th Street, Long Beach, California 90804.  

The request is GRANTED. (Evid. Code §452(h).) 

III. DEMURRER 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).)   

The Court finds the Nguyens fulfilled this requirement prior to filing its demurrer. (Reagan. Decl. ¶¶ 2-4).  

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer, or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

The Nguyens contend Plaintiffs are barred by the statute of limitations because Plaintiffs were not genuinely ignorant of the Nguyens, and therefore the Doe amendments do not relate back to the date of the filing of the complaint. In support of this contention, the Nguyens argue that Plaintiff had constructive notice of their identity because the information was available through a public records search.  

The Court is not persuaded by the Nguyens’ assertion. The ignorance of which Code of Civil Procedure section 474 speaks is actual ignorance, and a plaintiff will not be refused the right to use a Doe pleading even where the plaintiff's lack of actual knowledge is attributable to plaintiff's own negligence. (Grinnell Fire Prot. Sys. Co. v. Am. Sav. & Loan Assn. (1986) 183 Cal. App. 3d 352, 359.) Further, “[S]ection 474 is not to be confused with the statute of limitations.” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942, 947.) In other words, even if Plaintiff could have potentially discovered the Nguyens through a public records search, "there is no requirement placed upon a plaintiff to exercise reasonable diligence prior to filing the complaint to discover the defendant's identity or the facts giving him a cause of action against defendant.” (Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 116.) It is the Nguyen’s burden to prove that Plaintiffs knew of their identity and the facts giving rise to liability when Plaintiffs filed their complaint. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173; see Banke and Segal (Rutter Group 2020 Update) Cal. Prac. Guide:  CPBT Statute of Limitations, ¶8:106.) The contention that their identities could have been discovered through a property search, as opposed to having actual knowledge, falls short of meeting this burden. Taking as true the complaint’s allegations that the true names of defendants sued as Does were unknown to plaintiffs, CCP § 474 is therefore satisfied and the Doe amendment appears proper on its face.  

Therefore, the Nguyen’s demurrer to the Doe amendments is OVERRULED.  

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) As in any negligence action, whether a duty was owed under the facts is a question of law for the court. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)  One who has not created a peril normally has no duty to affirmatively act so as to prevent harm to third persons. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Regents of Univ. of Calif. v. Sup.Ct. (2018) 4 Cal.5th 607, 663-64.) Generally, “ ‘one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.’ ” (Regents of Univ. of Calif., 4 Cal.5th at 619.) However, the law does impose a legal duty to affirmatively act to protect someone else from danger or to control the conduct of a third person if there is a “special relationship” between defendant and the person in danger or the third person creating the danger. (Brown, 11 Cal.5th at 215; Regents of Univ. of Calif., 4 Cal.5th at 619 [“ ‘A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.’ ”].) 

Here, the complaint alleges that defendants owned, operated, and managed the premises located at 2711 E. 7th St., Long Beach, CA 90804. (Compl. at p. 5.) On October 29, 2019, Plaintiffs were invitees to the house, when “Doe Attacker pulled out a gun and started shooting into the crowd of invitees, including the Plaintiff. Plaintiff was then physically shot several times by Doe Attacker.” (Id. at p. 6.) On its face, the complaint does not contain any factual allegations suggesting the Nguyens had the ability to control Doe Attacker. The complaint merely alleges that defendants should have taken steps to prevent Plaintiffs from encountering this Doe Attacker on the premises. (Ibid.) In other words, there are no factual allegations demonstrating that the Nguyens had a duty to protect Plaintiffs from the tortious conduct of Doe Attacker in this shooting. 

Accordingly, the demurrer to the first and fifth causes of action are SUSTAINED.   

In this case, the complaint merely alleges the elements of assault, battery, and IIED. There are no facts supporting the allegations that the Nguyens intentionally caused harm to Plaintiffs, or were otherwise directly liable and vicariously liable under respondeat superior for the actions of Doe Attacker firing his gun into a crowd of party goers. (Compl. at p. 8-9.) 

Therefore, the demurrer as to the second, third, and fourth causes of action are SUSTAINED.  

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  

Here, the complaint concludes that defendants failed to maintain proper security at the event when Doe Attacker pulled out a gun and fired at patrons at the event. (Compl. at p.12.) The threshold issue is whether the landlord had reason to anticipate risks of third party criminal activity (or other tortious conduct) on the premises. If the landlord had reason to know of a particular risk, he or she has a duty to warn tenants (or their guests and invitees) and to take reasonable security precautions for their benefit. (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 156-57.) There are no factual allegations that the Nguyens, as the alleged owners of the premises, had reason to anticipate the harm, such that a duty was imposed upon them to protect Plaintiffs against the risk of Doe Attacker shooting persons on the premises. 

Accordingly, the demurrer as to the sixth cause of action is SUSTAINED.  

IV. MOTION TO STRIKE 

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5(a).) 

The Court finds the Nguyens have fulfilled this requirement. (Reagan Decl. ¶¶ 2-4.) 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)  

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)   

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)    

The Nguyens seek to strike the prayer for punitive damages, and allegations contained in the second, third, and fourth causes of action that their conduct was malicious, oppressive, and fraudulent. The Court agrees that the complaint’s allegations are contradictory and unclear as to the liability of the Nguyens based on the acts of Doe Attacker firing a gun at patrons. There are no factual allegations that the Nguyens, as the alleged owners of the premises, had engaged in oppressive, fraudulent, or malicious act arising from the incident to properly plead punitive damages against them. Plaintiffs do not oppose the motion, or otherwise provide a basis for punitive damages against the Nguyens. 

Accordingly, the motion to strike allegations and the prayer for punitive damages is GRANTED. 

V. CONCLUSION 

The burden is on Plaintiffs to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) 

In this case, Plaintiffs did not oppose the demurrer or motion to strike. Unless Plaintiffs’ counsel, at the hearing, can show how the causes of action can be cured to state a cognizable claim against the Nguyens, the demurrer as to the first, second, third, fourth, fifth, and sixth causes of action will be SUSTAINED without leave to amend, and the motion to strike will be GRANTED without leave to amend.   

 Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 18th day of April 2024