Judge: Walter P. Schwarm, Case: 30-2021-01239205, Date: 2022-11-29 Tentative Ruling

Motion No. 1:

Defendants’ (Carlos Toro and Jennifer Toro) unopposed Demurrer to First Amended Complaint (Demurrer), filed on 8-3-22 under ROA No. 69, is SUSTAINED.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”

Defendants challenge the first, second, and third causes of action contained in Plaintiff’s (MacKenna R., a minor, by and through her Guardian ad Litem, Kara R.) First Amended Complaint (FAC), filed on 7-6-22 under ROA No. 58, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Demurrer; vi:1-26.)

First Cause of Action (Negligence):

The Demurrer states, “Nonetheless, it is abundantly apparent that Defendants Toros owe no cognizable duty of care to babysit Plaintiff MacKenna while under the supervision of her own mother, Kara R since she was admittedly sleeping with or within feet of her mother at the time of the alleged assault. The Toros also had no duty to control or supervise because they had no duty to control the conduct of a third party adult, Mr. Ryan. Further, the Toros have a social host immunity.” (Demurrer; 1:11-15.)

The FAC pleads, “Defendants Jennifer Toro and Carlos Toro and DOES 1-50, and each of them, owed a duty of care to MACKENNA as to provide her with adequate and proper care at all times while she was a guest at Jennifer Toro and Carlos Toro's residence. [¶] Jennifer Toro and Carlos Toro and DOES 1-50, and each of them, knew or should have known that their failure to properly supervise, control, oversee, and/or monitor MACKENNA and Defendant RYAN would result in serious harm and injury to Plaintiff.” (FAC, ¶¶ 43 and 44; Capitalization in Complaint.) Paragraph 44 of the Complaint pleads, “A special relationship existed between Defendants Jennifer Toro and Carlos Toro and MACKENNA such that Jennifer Toro and Carlos Toro, had the affirmative and mandatory duty to supervise and care for MACKENNA, and the obligation to take all reasonable steps to protect MACKENNA from reasonably foreseeable harm.” (FAC, ¶ 48.) (Capitalization in Complaint.)

Melton v. Boustred (2010) 183 Cal.App.4th 521, 535 (Melton), states, “As noted above, a special relationship may give rise to a legal duty to protect the plaintiff from third parties, even in the absence of misfeasance by the defendant. ‘The special relationship situations generally involve some kind of dependency or reliance.’ [Citations.] ‘Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.’ [Citation.] In addition, such ‘special relationships triggering a duty to protect another from foreseeable injury caused by a third party have been found in other contexts, including those of (i) common carriers and passengers, (ii) innkeepers and their guests, and (iii) mental health professionals and their patients.’ [Citation.] [¶] In this case, plaintiffs have not alleged facts supporting the existence of any special relationship recognized by law that would trigger a legal duty on defendant's part to protect them. The complaint alleges that plaintiffs came to defendant's house to attend a party. Those facts do not warrant application of the special relationship doctrine, and plaintiffs do not argue otherwise.”

After reviewing the factors in Rowland v. Christian (1968) 69 Cal.2d 108 Padilla v. Rodas (2008) 160 Cal.App.4th 742, 748 (Padilla), states, “Imposing a duty under the circumstances of this case also would unreasonably burden social and family relationships, requiring homeowners to provide baby-sitting services for their guests' young children when the children's parents also were on the premises. Imposition of such a duty on homeowners would make them insurers of their guests' children's safety even when the parents are also present on the premises, a burden that is beyond all reasonable expectations of both homeowners and their guests. ‘[L]andowners are not insurers of public safety and will have no duty to provide highly burdensome measures of protection absent a showing of a high degree of foreseeability of the particular type of harm. . . .’ [Citation.] [¶] Although California courts have not considered the issue, courts in other states have determined that a homeowner has no duty to supervise a child in the vicinity of a residential swimming pool when the child's parent is also present and have affirmed summary judgments in favor of homeowners on facts similar to those here.”

Similar to Padilla, the First Amended Complaint still pleads that Plaintiff was in the same room as her mother when the alleged assault occurred. (Complaint, ¶¶ 2 and 28-40.) As the court previously ruled on 6-21-22, these allegations do not support a special relationship between Plaintiff and Defendants to protect Plaintiff from the acts of a third party. Since the FAC pleads that Plaintiff’s mother was present, the FAC does not adequately plead that Plaintiff was dependent on Defendants to protect her.  Thus, the court finds that the FAC does not sufficiently plead that Defendants had a legal duty to protect Plaintiff from third parties.

Melton states, “As explained above, ‘in the case of criminal conduct by a third party, an extraordinarily high degree of foreseeability is required to impose a duty on the landowner’ for the resulting harm. [Citation.] [¶] In determining whether this heightened standard of foreseeability has been established, the defendant's knowledge is critical. [Citation.] When the court engages ‘in any analysis of foreseeability, the emphasis must be on the specific, rather than more general, facts of which a defendant was or should have been aware.’ [Citation.]” (Melton, supra, 183 Cal.App.4th at p. 536 (Italics in Melton.) “But in cases involving liability for third party criminal conduct, ‘the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents.’ [Citations.]” (Id., at pp. 537-538.)

The FAC pleads, “RYAN began acting sexually aggressive towards females at the party by engaging in unwanted touching of the guests in front of Jennifer Toro and Carlos Toro, and therefore Defendants had knowledge of aggressive sexual behavior and dangerous propensity on that evening. However, RYAN was allowed to remain at the party. [¶] RYAN’S sexually aggressive conduct caused multiple guests to leave the party. . . .[¶] KARA believed RYAN to be outwardly acting in a ‘creepy’ and sexually inappropriate manner.” (FAC, ¶¶ 23, 24, 26; Capitalization in Complaint.) The FAC does not allege that Defendants had actual knowledge of the conduct alleged in paragraphs 28 through 40 of the Complaint. Therefore, the Complaint does not allege the high degree of foreseeability to impose a duty on Defendants for the criminal conduct of a third party.

Civil Code section 1714, subdivision (b), states, “It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court (1978) 21 Cal.3d 144 and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” Business and Professions Code section 25602, subdivision (b), provides, “No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.”

Biles v. Richter (1988) 206 Cal.App.3d 325, 329-330 (Biles), explains, “It is now firmly established that section 1714, subdivision (c) and Business and Professions Code section 25602, subdivision (b), provide immunities from liability for those who furnish alcohol to others. [Citations.]” (See also, Allen v. Liberman (2014 227 Cal.App.4th 46, 54-55).

Based on the above, the First Amended Complaint does not adequately plead duty and the court SUSTAINS the Demurrer to the first cause of action.

Second Cause of Action (Negligent Supervision):

The court SUSTAINS the Demurrer to the second cause of action for the same reasons as stated for the first cause of action.

Third Cause of Action (Premises Liability):

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

The court SUSTAINS the Demurrer to the third cause of action for the same reasons as stated for the first cause of action.

Based on the above, the court SUSTAINS Defendants’ (Carlos Toro and Jennifer Toro) unopposed Demurrer to First Amended Complaint filed on 8-3-22 under ROA No. 69.  “The court abuses its discretion in sustaining the demurrer without leave to amend if the plaintiff can show a reasonable possibility of curing the defect in the complaint by amendment. [Citation.] Heritage has the burden of proving that an amendment would cure the defect. [Citation.]” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994.)  Since the Demurrer is unopposed, the court intends to SUSTAIN the Demurrer without leave to amend unless Plaintiff can demonstrate a reasonable possibility of curing the defects identified in the Demurrer at the hearing on 11-29-22.

Defendants are to give notice.

Motion No. 2:

Defendants’ (Carlos Toro and Jennifer Toro) unopposed Motion to Strike the Prayer for Puntive Damages from Plaintiffs’ First Amended Complaint (Motion), filed on 8-3-22 under ROA No. 70, is OFF CALENDAR as MOOT based on the court’s decision as to Motion No. 1.