Judge: Yolanda Orozco, Case: 22STCV07737, Date: 2023-01-13 Tentative Ruling
Case Number: 22STCV07737 Hearing Date: January 13, 2023 Dept: 31
DEMURRER WITH MOTION TO STRIKE
TENTATIVE RULING
Defendants’ Demurrer to FAC is OVERRULED. Defendants’ Motion to Strike is GRANTED WITH LEAVE TO AMEND.
Background
The operative First Amended Complaint (FAC) asserts causes of action for:
1) Negligence (Wrongful Death);
2) Negligence (Survival Action);
3) Premises Liability (Wrongful Death)
4) Premises Liability (Survival action);
5) Negligent Hiring/Retention/Supervision Training (Wrongful Death); and
Negligent Hiring/Retention/Supervision Training (Survival Action).
On July 21, 2022, Defendants Bobby Dee Presents, Inc. (“Bobby Dee” and Snoop Dogg’s LLC (“Snoop Dog”) filed a demurrer with a motion to strike Plaintiff’s FAC.
On July 20, 2022, Defendants Live Nation Worldwide, Inc. (“Live Nation”) and C3 Presents, LLC (“C3”) also filed a demurrer to Plaintiff’s FAC.
On December 30, 2022, Plaintiff filed opposing papers to both demurrers.
Defendants Bobby Dee and Snoop Dogg filed a reply on January 06, 2023.
No reply has been filed by “Live Nation” and “C3.”
Since Bobby Dee, Snoop Dogg, Live Nation and C3 demurrer and move to strike the FAC on the same basis, the Court will address Defendants’ motions collectively.
MEET AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41, 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)
The meet and confer requirement has been met by Bobby Dee and Snoop Dogg. (Begakis Decl. ¶¶ 2, 4, Ex. A .)
The meet and confer requirement has been met by Live Nation and C3. (Pompeo Decl. ¶¶ 3, 10, Ex. A – F.)
Legal Standard
A. Demurrer¿¿¿
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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.)¿ “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.”¿ (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿ For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿ A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿ (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿
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B. Motion to Strike¿¿
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Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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 of Civ. Proc., § 436, subds. (a)-(b); 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”].)¿¿¿
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C. Leave to Amend¿¿¿
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“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿
Request for Judicial Notice (if applicable)
The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
Defendants request Judicial Notice of:
1. A copy of Plaintiff Caiden Caldwell’s Complaint, entitled Caiden Caldwell, a minor, as Successor-In-Interest to the Estate of Darrell Caldwell p/k/a Drakeo The Ruler, through his guardian ad litem Tianna Purtue v. Live Nation Worldwide, Inc., et al., Los Angeles County Superior Court Case No. 22STCV04087, filed on February 2, 2022.
Defendants’ request for Judicial Notice is GRANTED.
Discussion
Allegations in FAC
This wrongful death action arises out the death of Darrell Caldwell (the “Decedent”) on December 18, 2021, at the “Once Upon A Time in LA” music festival (“Music Festival”) held at the Bank of California Stadium in Exposition Park. (FAC ¶ 1.)
The Decedent was known by his stage name, Drakeo the Ruler, and was slated to perform at the Music Festival. However, prior to the start of his performance, the Decedent was attacked by a violent mob in the backstage area of the Music Festival. (FAC ¶ 2.) The backstage area was supposed to be secure and safe, but due to the Defendants negligence and lack of care, a violent mob was allowed in and attacked the Decedent. (FAC ¶¶ 3, 4.)
Plaintiffs allege there was a complete and abject failure of all Defendants to implement proper safety measures to ensure the safety of the performing artists. (FAC ¶¶ 5, 6.) The lax security measures allowed 50 to 100 individuals to enter the backstage area and attack and kill the Decedent. (FAC ¶¶ 9, 12, 13.)
Plaintiffs allege that based on numerous past incidents of violence and death at their events, and the prevalence of gang activity in the area, each Defendant was aware and fully cognizant of the potential danger to guests and performers. (FAC ¶ 7.) Defendants also knew that numerous artists had street gang affiliations. (FAC ¶¶ 10, 45, 46, 53, 54.) The Defendants also knew that the Decedent had been accused of a murder of an Inglewood Bloods gang member and that the Decedent was being targeted by the gang as revenge. (FAC ¶¶ 11, 49, 50, 51, 57.)
Plaintiffs allege that Live nation knew of specific prior violent incidents at its concerts, including at the 2010 Vancouver Olympics, the 2017 Las Vegas mass shooting, the 2011 Indiana State Fair; and the 2017 Ariana Grande concert in Manchester, England. (FAC ¶¶ 8, 59, 60, 61.) Despite knowledge of past incidents, Live Nation and other Defendants did not have adequate security. (FAC ¶¶ 9, 41, 42, 44.)
Accordingly, Defendants failed in their duty of care to the Decedent and other invited artists by failing to have an adequate security plan, sufficient security guards, and law enforcement presence in the backstage area and/or improperly implementing the security measures that were in place. (FAC ¶ 13.) Plaintiffs allege that but for the Defendants’ negligence and wrongdoing, the Decedent would not have been killed (FAC ¶¶ 14, 14, 15.)
Plaintiffs allege Live Nation, C3, Bobby Dee, and Snoop Dogg were each responsible for organizing, promoting, selecting, and hiring the artist and security personnel. (FAC ¶ 21, 22, 23, 24.) Each Defendant had a duty to safeguard the premises and provide adequate security to detect and prevent violent incidents from taking place at the premises and/or during the Music Festival. (Id.)
In particular, the Plaintiffs allege that the Defendants knew there was a public feud between the Decedent and the artist YG, who has associations with the Blood gangs. (FAC ¶¶ 55, 56, 66.) The Defendants only allotted the Decedent 15 all-access wristbands while giving YG at least 78 to 100 all-access wristbands, without a legitimate reason. (FAC ¶ 68.) The Decedent’s timeslot for his performance was also changed from 7:10 p.m. to 8:30 p.m. without explanation, making the Decedent’s performance much closer in time to YG’s performance. (FAC ¶ 66.) The change in time slot created circumstances whereby YG’s larger entourage would encounter the Decedent’s smaller group and put the safety of the Decedent at risk. (FAC ¶¶ 56, 66.)
In the alternative that the Defendants, and Live Nation specifically, did not give YG 78 to 100 all-access wristbands, the Defendants were each negligent in allowing YG to enter the backstage area with dozens of unauthorized individuals, some of whom would later cause the Decedent’s death. (FAC 69.)
Plaintiff alleges that there were two checkpoints to access the backstage area. (FAC ¶ 71.) The Decedent and his entourage passed the first checkpoint which was a booth with one or two unarmed personnel who let any vehicle that presented an all-access passes to enter without being searched or verifying the identities of the occupants in the vehicle or whether the number of passes matched the number of occupants (FAC ¶ 72.)
The second checkpoint consisted of a small group of security guards with a drug-sniffing dog and a metal detector. (Id.) Plaintiffs allege searches were carried out in an arbitrary and reckless manner, with some vehicles being allowed to pass through to the backstage area without any verification of their identities or without being subject to a metal detector, or any type of search. (FAC ¶¶ 73, 74.) Defendants allowed cars and SUVs to enter the backstage area without being stopped or search as they shouted gang-related chants and challenges such as “Wooop! And “Suuu Whoop!”. (FAC ¶ 78.)
Plaintiffs allege that despite countless other vehicles being let through to the backstage area without being searched, the Decedent’s sole security officer was searched and disarmed. (FAC ¶ 75.) No other security team was provided to the Decedent. (FAC ¶ 77.)
Within minutes of the Decedent’s arrival at 8:50 p.m., the Decedent and his group were attacked by over 10 individuals. (FAC ¶¶ 81, 82.) A larger horde of 50 to 100 individuals also began attacking the decedent and his group while shouting gang taunts of “Whooop!” and “Suuu Whoooop!” (FAC ¶ 84.)
No security was present during the attack (FAC ¶ 82.) Individuals who sought refuge from the attack by trying to pass through the gate that separated the backstage area from the actual stage were blocked by Defendants’ agents and pushed back from reaching safety. (FAC ¶ 86.)
The mob that attacked the Decedent and his entourage, produced knives, and the Decedent was stabbed in the neck. (FAC ¶ 89.) No security intervened to stop the attack or to apprehend the assailants. (FAC ¶ 92.) The Decedent’s wounds were too severe and he was declared dead on December 19, 2021. (FAC ¶ 95.)
I. Defendants’ Demurrer to FAC
Live Nation and C3’s Demurrer to the FAC on the same basis as Bobby Dee and Snopp Dogg. Therefore, the Court will consider all of the Defendants’ arguments collectively and address each contention in turn.
i. Plaintiff Corniel’s Lack of Standing to Assert 1st, 3rd, and 5th Cause of Action
Defendants assert that Plaintiff Darrylene Corniel lacks standing under the Code of Civil Procedure section 377.60 to bring a wrongful death action. Plaintiffs assert that Plaintiff Corniel has sufficiently pled facts that she was the Decedent’s dependent under section 3779.69(b)(1) because she pled facts that allege she received significant financial support from the Decedent for her housing and essential needs. (FAC ¶¶ 19, 107.)
“Regardless of their status as heirs, parents may sue for the wrongful death of their child ‘if they were dependent on the decedent.’ (Code Civ. Proc., § 377.60, subd. (b).) For purposes of this subdivision, dependence refers to financial support.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1445.) “Financial dependence generally presents a question of fact, which ‘should be determined on a case-by-case basis.’” (Id.)
An issue of fact is not properly resolved on a demurrer. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422.) Despite Live Nation’s assertion that more facts are needed to determine if Plaintiff Corniel is in fact a dependent of the Decedent, this inquiry is not appropriate on demurrer. The Court notes that both Chavez v. Carpenter (2001) 91 Cal.App.4th 1433 and Perry v. Medina (1987) 192 Cal.App.3d 603 each addressed the issue of dependency at the summary judgment/adjudication phase and not on demurrer.
Accordingly, the Court finds that Plaintiff Corniel has pled sufficient facts to show she has standing to assert the first, third, and fifth causes of action.
ii. Demurrer to Plaintiff’s 1st, 2nd, 3rd, and 4th Causes of Action
The Defendants demurrer to Plaintiffs’ first, second, third, and fourth causes of action on the basis that without an allegation of prior, similar, violent crime, having occurred on the subject premises during a music festival, the Defendants owed no duty because the harm to the Decedent was not foreseeable.
The necessary elements for a negligence cause of action are: (1) legal duty of care; (2) a breach of that duty; (3) proximate cause resulting in injury; and (4) damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “It is clear that foreseeability is but one factor to be weighed in determining whether a landowner owes a duty in a particular case.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125.) “Prior similar incidents are helpful to determine foreseeability but they are not necessary. A rule that limits evidence of foreseeability to prior similar incidents deprives the jury of its role in determining that question.” (Id. at 127.) “We further explained that foreseeability should be assessed in light of the ‘totality of the circumstances,’ including such factors as the nature, condition and location of the premises.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, disapproved of on another grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512.) In Ann M., the California Supreme Court affirmed summary judgment in favor of the owner because the plaintiff had failed to provide any evidence that the defendant shopping center had notice of prior incidents of violent criminal assaults and therefore had no duty to provide security guards in common areas. (Id. at 679.)
While it is true that the Plaintiffs have not pled prior incidents of stabbing, assaults, and killing have occurred on the subject premises, the Plaintiffs have pled sufficient facts to support the inference that violent incidents at a music festival or concert were foreseeable. (FAC ¶¶ 8, 59, 60, 61.) The incidents cited by the Plaintiffs support the inference that Defendants knew that lax security measures could lead to violence.
Moreover, the Defendants’ reliance on Ann M. is unavailing because Ann M. was decided at the summary judgment stage, and not on demurrer, meaning that Ann M.’s pleading was not insufficient. On demurrer, Plaintiffs need not prove that prior or similar incidents have occurred on the premises of the music festival. "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)
While the determination of a duty is a question of law, “a mixed question of law and fact may arise out of the relationship of foreseeability to the creation of a duty.” (Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 52.) Here, the FAC sufficiently alleges that security was lax and that despite the presence of security guards and mental detectors, some vehicles were not adequately searched thus allowing the assailants to enter the backstage area. (FAC ¶ 22, 73, 74, 78.) “The weight of authority in other jurisdictions, however, indicates that under analogous circumstances, a landlord is liable even for the first crime of a particular type.” (Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 329.) Although the occurrence of a mob/gang attack may have occurred for the first time, Defendants may nevertheless be held liable if the facts show that the danger was foreseeable and/or preventable.
The California Supreme Court has explained:
“Thus, as to foreseeability, we have explained that the court's task in determining duty ‘is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed....’ (Citation.)”
(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 [italics original].)
Here, the fact that Defendants knew security would be needed for the event, supports the finding that the performing artists’ safety was a concern for Defendants and foreseeable to them. The fact that not all vehicles were searched or that the searches were inadequate and the fact that no security intervened when the attack began are negligent acts that were sufficiently likely to result in the kind of harm the Decedent suffered. “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [internal quotations and citations omitted].)
Plaintiffs have sufficiently alleged that Defendants breached a duty by failing to provide adequate security and not stopping the mob/gang attack once it began. The demurrer is OVERRULED as to the first, second, third, and fourth causes of action.
Defendants’ demurrer is OVERRULED.
II. Defendants’ Motion to Strike
Defendants Bobby Dee, Snoop Dogg, Live Natation, and C3 move to strike Plaintiffs’ request for punitive damages on the basis that the Plaintiffs have pled insufficient facts to support a claim for punitive damages against a corporation.
Defendants seek to strike the following:
1) Paragraph 120 of the FAC on page 21, line 23: “reckless;”
2) Paragraph 136 of the FAC on page 24, line 10-11: “Defendants, and each of them, acted with oppression, fraud, and/or malice in that, among other things, they acted with a willful and conscious disregard for the rights and safety of Decedent;”
3) Paragraph 140 of the FAC, on page 25, line 6-8: “an officer, a director, and/or a managing agent of Defendants, and each of them, personally directed, ratified and authorized the employees’, contractors’, or agents’ wrongful conduct, and/or personally adopted, ratified, or approved the wrongful conduct after it occurred;”
4) Paragraph 140 of the FAC, on page 25, line 10-13: “an award of punitive damages in a sum according to proof at trial is therefore, justified, warranted and appropriate under the facts and circumstances of this case, and to punish or set an example of Defendants and deter such behavior by Defendants and others in the future;”
5) Paragraph 154 of the FAC, on page 27, line 12: “reckless;”
6) Paragraph 169 of the FAC, on page 29, line 22-23: “Defendants, and each of them, acted with oppression, fraud, and/or malice in that, among other things, they acted with a willful and conscious disregard for the rights and safety of Decedent;”
7) Paragraph 172 of the FAC, on page 30, line 11-13: “an officer, a director, and/or a managing agent of Defendants, and each of them, personally directed, ratified and authorized the employees’, contractors’, or agents’ wrongful conduct, and/or personally adopted, ratified, or approved the wrongful conduct after it occurred;”
8) Paragraph 172 of the FAC, on page 30, line 15-18: “an award of punitive damages in a sum according to proof at trial is therefore, justified, warranted and appropriate under the facts and circumstances of this case, and to punish or set an example of Defendants and deter such behavior by Defendants and others in the future;”
9) Paragraph 181 of the FAC, on page 31, line 19: “recklessness;”
10) Paragraph 197 of the FAC, on page 33, line 11: “recklessness;”
11) Paragraph 198 of the FAC, on page 33, line 16-18: “constituted malice, oppression, and fraud and was despicable conduct that subjected Darrell to cruel and unjust hardship which evinced an extreme indifference and/or a conscious disregard to and of Darrell’s rights;”
12) Paragraph 198 of the FAC, page 33, line 21-23: “an officer, a director, and/or a managing agent of Defendants, and each of them, personally directed, ratified and authorized the employees’, contractors’, or agents’ wrongful conduct, and/or personally adopted, ratified, or approved the wrongful conduct after it occurred;”
13) Paragraph 198 of the FAC, page 33, line 25-28: “an award of punitive damages in a sum according to proof at trial is therefore, justified, warranted and appropriate under the facts and circumstances of this case, and to punish or set an example of Defendants and deter such behavior by Defendants and others in the future;” and
14) Paragraph 4 of the Prayer for Relief in the FAC, page 34, line 18: “for punitive and exemplary damages for Decedent Darrell, according to proof.”
Plaintiffs assert that they have sufficiently alleged that Defendants, as Corporate actors, in particular Live Nation, objectionable corporate practices that were ratified by the other Defendants. Plaintiffs also assert that they have pled a prima facie case for punitive damages. However, Plaintiffs fail to cite a single case where the allegation that a corporation acted with malice, oppression, or fraud was found to be sufficient to sustain a prayer for punitive damages where no corporate agents were named.
A corporation is a legal fiction that cannot act except through its employees or agents. (See Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1392.) A corporation lacks malice unless there is proof of malice amongst its corporate leaders. (See Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167 [“Instead, the punitive damage statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent [s].’ (Civ. Code, § 3294, subd. (b).”].) Corporate leaders are “the group whose intentions guide corporate conduct. By so confining liability, the statute avoids punishing the corporation for malice of low-level employees which does not reflect the corporate “state of mind” or the intentions of corporate leaders. This assures that punishment is imposed only if the corporation can be fairly be viewed as guilty of the evil intent sought to be punished.” (Id.)
Plaintiffs’ FAC is devoid of names or facts that the corporate leaders of Defendants acted with malice, oppression, or fraud in organizing the Music Festival or the hiring and implementation of security measures. If the names of corporate agents cannot be obtained until after discovery is underway, then Plaintiff can always seek to leave to amend the complaint.
Since Plaintiff fails to plead that a managing agent, officer, or director authorized or ratified the wrongful conduct for which punitive damages are sought, the motion to strike is GRANTED WITH LEAVE TO AMEND.
Conclusion
Defendants’ Demurrer to FAC is OVERRULED. Defendants’ Motion to Strike is GRANTED WITH LEAVE TO AMEND.
Moving parties to give notice.