Judge Thomas D. Long, Case 22STCV20244 2023-02-28 Tentative Ruling

On October 28, 2022, Plaintiff J.A.M. (a minor, individually and as Successor-In-Interest to the Estate of Decedent Michael McGarry, by and through his Guardian Ad Litem, Lindsey Mueller) filed a first amended complaint (”FAC”) against Defendants Preferred Express Towing and Recovery Inc., Mohammad Alqaza, NantMedia Holdings LLC (erroneously used as Nant Capital LLC dba Los Angeles Times) (“NantMedia”), Atlas Capital Group LLC (“Atlas”), Alameda & 8th Owner LLC (“Alameda”), and Rudin Management Company Inc. (“Rudin”).

On December 27, 2022, Plaintiff filed an application to file his birth certificate under seal.

The Court may order that a record be filed under seal only if it finds that (1) there is an overriding interest that overcomes the right of public access to the record, (2) the overriding interest supports sealing the record, (3) a substantial probability exists that the overriding interest will be prejudiced absent sealing, (4) the proposed sealing is narrowly tailored, and (5) no less restrictive means exists to achieve the overriding interest. (California Rules of Court, rule 2.550(d).) A motion seeking an order sealing records must be accompanied by a declaration containing facts sufficient to justify the sealing. (California Rules of Court, rule 2.551(b)(1).) “The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (California Rules of Court, rule 2.551(a).)

Plaintiff’s motion and counsel’s declaration do not contain facts sufficient to justify sealing. Counsel states only that “[r]edaction is necessary because the redacted information consists of personal information of Plaintiff J.A.M., a minor— including date of birth and full name.” (Hunter Decl. ¶ 8.) Counsel does not otherwise address any of the criteria for sealing.

If Plaintiff intends to file this exhibit unsealed, he must notify the Court within 10 days. Otherwise, the Court will return the lodged document and delete it from the electronic record. (California Rules of Court, rule 2.551(b)(6).)

On November 28, 2022, NantMedia and Atlas (collectively, “Defendants”) filed a demurrer and motion to strike. Defendants demur to the second, third, fourth, and sixth causes of action.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) A special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

A. Defendants’ Request for Judicial Notice is Granted in Part for Exhibits F-G and is Otherwise Denied.

Defendants ask the Court to take judicial notice of (1) the FAC; (2) a copy of a March 14, 2022 ABC 7 News Article; (3) a copy of a September 7, 2022 ABC 7 News Article; (4) a copy of a March 14, 2022 FOX 11 News Article; (5) a copy of a March 14, 2022 CBS Los Angeles News Article; (6) copy of the February 2022 Initial Study performed by the City of Los Angeles related to the subject premises; (7) a copy of cumulative Permit and Inspection Report searches conducted on November 9, 2022, via the Los Angeles Department of Building and Safety website related to the status of any and all pending permits concerning the subject premises; and (8) a copy of the October 28, 2022 emails regarding LAPD Public Records & Subpoena Response Section, CPRA Unit’s response to a public record request.

RJN No. 1 (Exhibit A) is denied as irrelevant; the FAC is already part of this case’s record.

RJN Nos. 2-5 (Exhibits B-E) are denied. The Court cannot take judicial notice of the truth of the contents of these news articles, which is how Defendants rely on the exhibits in their demurrer.

RJN Nos. 6-7 (Exhibits F-G) are granted in part. The Court may take judicial notice of the legal effect of documents’ language when the effect is clear, but it may not take judicial notice of the truth of statements of fact recited within the documents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.) The request is granted only to that extent.

RJN No. 8 (Exhibit I) is denied. An email from the City of Los Angeles Public Records is not clearly an official act of a public entity. (See Evid. Code, § 452, subd. (c).) And even if the Court could take judicial notice of the document’s existence, it could not take judicial notice of the truth of its contents.

B. Plaintiff Has Not Adequately Pleaded His Causes of Action Related to Premises Liability.

The second (general negligence), third (premises liability), and fourth (wrongful death) causes of action all arise from Defendants’ negligent control over the premises where Plaintiff’s father was fatally shot by a third party.

California law requires landowners to maintain land in their possession and control in a reasonably safe condition. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) The liability of landowners for injuries to people on their property is governed by general negligence principles. (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407 (Pineda).) A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The existence of a legal duty is a question for the court to determine, and “foreseeability is a ‘crucial factor’ in determining the existence and scope of a legal duty.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237, citing Ann M., supra, 6 Cal.4th at pp. 674, 676 (Delgado).)

Plaintiff alleges that Defendants failed to provide necessary surveillance and security patrols at the premises. (E.g., FAC ¶¶ 50, 56, 59.) Plaintiff also alleges that Defendants failed to warn of the danger posed by the premises. (E.g., FAC ¶¶ 52, 59.) “[A] high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. . . . [T]he requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well established policy in this state.” (Ann M., supra, 6 Cal.4th at p. 679, footnote omitted.) “Heightened foreseeability is satisfied by a showing of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents. (Delgado, supra, 36 Cal.4th at p. 245.)

The FAC contains no facts showing that it was foreseeable that a tow truck operator would be shot or otherwise harmed at the premises. (See FAC ¶ 23.) Nor does the FAC contain facts about the foreseeability of any danger or criminal activity at all. Plaintiff also fails to allege any facts showing how inadequate lighting caused his harm. (See, e.g., FAC ¶¶ 27, 30, 49-50, 56, 62, 65-66.)

The FAC’s allegations are conclusory, do not allege facts showing prior similar criminal incidents, and do not satisfy the heightened foreseeability required for establishing liability for third-party criminal activity.

The demurrer to the second, third, and fourth causes of action is sustained with 20 days’ leave to amend.

C. Plaintiff Has Not Adequately Pleaded Liability Under the Single Enterprise Doctrine.

The sixth cause of action alleges that under the single enterprise doctrine, Defendants were engaged in a single enterprise with Alameda and Rudin.

Single enterprise is a theory of liability, not a cause of action. (See Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220.) “Two conditions are generally required for the application of the [single enterprise] doctrine to two related corporations: (1) such a unity of interest and ownership that the separate corporate personalities are merged, so that one corporation is a mere adjunct of another or the two companies form a single enterprise; and (2) an inequitable result if the acts in question are treated as those of the corporation alone.” (Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202, 1219.)

The FAC alleges that Defendants, Alameda, and Rudin “had such a unity of interest and ownership that the separate corporate personalities are merged, so that one corporation is a mere adjunct of another and the companies form a single enterprise,” and it would be inequitable for them to escape liability. (FAC ¶¶ 11, 72, 83.) Nant was a tenant within the premises. (FAC ¶ 74.) Atlas and Alameda share a corporate business address. (FAC ¶¶ 76.) The Chief Financial Officer of Atlas is also a manager of Alameda and the Chief Financial Officer of Rudin. (FAC ¶¶ 77-79.) Plaintiff alleges that the defendants share a unity of interest, employees, agents, and officers, and they commingled funds. (FAC ¶¶ 80-82.) These allegations are conclusory and insufficient to allege liability under the single enterprise theory. Additionally, there are no facts regarding any inequitable result.

The demurrer to the sixth cause of action is sustained with 20 days’ leave to amend.

The court may, upon a motion or at any time in its discretion: (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).)

A. Defendants Have Not Shown a Basis For Striking References to the 8th & Alameda Studios Project.

Defendants move to strike references to the 8th & Alameda Studios Project that was submitted to the Los Angeles Department of City Planning under Case Number: ENV-2021-4260-MND (paragraphs 2, 3, 10, 11, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 47, 49, 50, 51(b), 55, 56, 57, 58, 59, 60, 61, 62, 73, 74, 75, 76, 79, 80, 81, 82, and 83).

Defendants argue that these references are improper and irrelevant because the study was conducted after the incident and Defendants had nothing to do with the incident. (Motion at pp. 8-9.) This argument is premised on Defendants’ request for judicial notice in support of the demurrer and the documents’ contents that, as discussed above, are not proper subjects of judicial notice.

Defendants NantMedia and Atlas move to strike allegations supporting punitive damages. A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294, subd. (a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.)

The FAC’s allegations that Defendants’ “acts and/or omissions were either committed in a deliberate, cold, callous, malicious, intentional and/or unreasonable manner causing fatal injuries to Decedent and done with a conscious disregard of Decedent’s rights and safety” are conclusory and insufficient to support punitive damages. (FAC ¶¶ 53, 63.)

Plaintiff argues that Defendants did not move to strike the actual prayer for punitive damages. (Opposition at p. 4.) But an award of punitive damages requires allegations and proof of oppression, fraud, or malice, and without such allegations and eventual proof, they may not be awarded even if requested. In the Court’s discretion, the prayer for punitive damages is also ordered stricken. (See Code Civ. Proc., § 436.)

The motion to strike is granted on this ground. The following allegations are stricken: page 17, lines 21 through 26; and page 20, lines 16 through 21. The prayer for punitive damages is also stricken.

The motion to strike is DENIED as to paragraphs 2, 3, 10, 11, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 47, 49, 50, 51(b), 55, 56, 57, 58, 59, 60, 61, 62, 73, 74, 75, 76, 79, 80, 81, 82, and 83.

The motion to strike is GRANTED for punitive damages allegations (page 17, lines 21 through 26; and page 20, lines 16 through 21) with 20 days’ leave to amend. The prayer for punitive damages is also stricken.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court