Judge: Yolanda Orozco, Case: 22STCV07737, Date: 2023-01-20 Tentative Ruling
Case Number: 22STCV07737 Hearing Date: January 20, 2023 Dept: 31
DEMURRER
TENTATIVE RULING
Defendant USC’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.
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 August 15, 2022, Defendant University of Southern California (“USC”) filed a demurrer to Plaintiff’s FAC.
On January 06, 2023, Plaintiff filed opposing papers.
USC filed a reply on January 12, 2023.
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. (Friedberg Decl. ¶¶ 2-5, Ex. 1-3.)
LEGAL STANDARD¿¿
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.)¿¿
¿ ¿¿
“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.)¿¿
DISCUSSION
1. 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 (the “premises”). (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 of violence, Live Nation and other Defendants did not have adequate security. (FAC ¶¶ 9, 41, 42, 44.)
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, Plaintiffs allege that Defendants knew there was a public feud between the Decedent and the artist YG, who has associations with 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.)
Plaintiffs allege, in the alternative, that if 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.)
Plaintiffs allege 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 pass 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. (FAC ¶ 72.) 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 screening, 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 “Whooop! And “Suuu Whooop!”. (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 Whooop!” (FAC ¶ 84.)
No security personnel were 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.)
2. Specific Allegations against USC
Plaintiffs assert that USC holds the master lease for the premises, which it sub-leased to Defendant LAFC through December 31, 2053. (FAC ¶¶ 26, 27.) LAFC in turn sub-leased the premises to Defendant Live Nation and the other Defendants for the Music Festival. (FAC ¶ 27)
USC now demurrers to Plaintiff’s FAC in its entirety.
Demurrer to Negligence-Based Causes of Action
The negligence, premises liability, and negligent hiring/retention claims have the same elements. “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotation marks omitted].) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36.)
USC demurrers to the first, third, and fifth causes of action for wrongful death based on Negligence, Premises Liability, and Negligent Hiring, Supervision Training, and/or Retention, and the survival action asserted as the second, fourth, and sixth causes of action for Negligent Hiring, Supervision Training, and/or Retention based on the assertion that it owed no duty of care.
The first and second causes of action for negligence allege that USC breached its duty of care by failing to take reasonable steps to ensure the safety of the Decedent and prevent him from being violently attacked and killed while making his way to the stage where he was scheduled to perform. (FAC ¶¶ 109, 125.) The third and fourth causes of action, for premises liability, allege that USC was negligent in its use and/or maintenance of the premises for failing to prevent the attack on the Decedent. (FAC ¶¶ 143-144, 157-158.) The fifth and sixth causes of action, for negligent hiring, supervision, training, and retention, allege that USC failed to exercise reasonable care in the hiring, training, and supervision of the security guards on the premises. (FAC ¶¶ 174-176, 183-185.)
First, USC asserts that it owed no duty to provide security at the Music Festival because the Decedent’s murder was not sufficiently foreseeable.
1. Existence of a Duty of Care
“The first element—existence of a duty to be decided by the court rather than the jury—'is not an immutable fact, but rather an expression of policy considerations leading to the legal conclusion that a plaintiff is entitled to a defendant's protection.’” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279, citing Ludwig v. City of San Diego (1998) 65 Cal.App.4th 1105, 1110.) “When a court strives to answer this question, we believe it should limit its inquiry to the specific action the plaintiff claims the particular landlord had a duty to undertake in the particular case. This specific action approach was used, albeit sub silentio, by the Supreme Court in both [Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666] and [Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181]. In both of those cases, the Supreme Court considered whether, as alleged by the plaintiffs, the scope of the duty owed by owners of a shopping center and a commercial parking garage extended to providing security guards to protect its tenants and customers from violent crimes.” (Vasquez, supra, 118 Cal.App.4th at 280.)
Defendants argue that they owed no duty to provide any security because of the lack of foreseeability due to no prior similar events of violence at the subject premises. Plaintiffs argue that Defendants undertook a duty to provide security and they did so negligently. Plaintiffs are correct that Ann M. and Sharon P. are distinguishable because at issue is not whether USC and the other Promoter Defendants owed a duty to provide security in general, but once Defendants decided to provide security, whether they owed a duty to exercise due care by ensuring that security was properly provided, including proper screening and searching the vehicles entering the “VIP Access” area/backstage area; security or law enforcement presence or videos cameras in the backstage area to deter violence; and plans for security intervention once the attack on the Decedent and his entourage began. (FAC ¶¶ 4, 13, 73, 74, 75, 79, 82, 85, 87, 92, 115, 131, 149, 163)
USC alleges it owed no duty because murder and other criminal conduct had not previously occurred at the premises. Even though Plaintiff does not cite specific violent incidents occurring on the subject premises, Plaintiff sufficiently alleges that gang activity was prevalent in the area, that the Music Festival had artists affiliated with gangs and that Defendants should have known the Music Festival would attract gang activity, and that violent incidents erupting at the Music Festival were foreseeable based on past incidents occurring at other music festivals. (FAC ¶¶ 7, 8, 45, 53, 60-61, 112.)
“Foreseeability does not require prior identical or even similar events . . . an owner of land held open to the public for business purposes is under a duty to take affirmative action to control the wrongful acts of third persons which threaten the safety of visitors to the premises where he has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 329.)
Plaintiff has sufficiently alleged that incidents of violence, including violent attacks, were reasonably foreseeable to the Defendants. “Moreover, foreseeability depends not on whether a particular plaintiff's injury was foreseeable as a result of a particular defendant's conduct, but instead on whether the conduct at issue created a foreseeable risk of a ‘particular kind of harm.’ (Citations).” (Vasquez, supra, 118 Cal.App.4th at 286.)
The FAC sufficiently alleges that the Decedent’s violent attack and death were reasonably foreseeable due to the Defendants’ failure to properly search and screen vehicles and persons entering the backstage area, failing to have security/law enforcement in the backstage area, and failure to have security able to intervene when the attack on the Decedent and his entourage began. “Where ‘the harm can be prevented by simple means, a lesser degree of foreseeability may be required.’” (Vasquez, supra, 118 Cal.App.4th at 286, citing Ann M., supra, 6 Cal.4th 679; see also Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 52–53[lesser degree of foreseeability is required when the proposed duty involves simple, effective, and easily defined steps].)
For the stated reasons, the Court finds that Plaintiffs allege sufficient facts to show that USC owed a duty to provide adequate security measures.
Second, USC argues that it owed no duty because it did not have possession or control of the premises during the Music Festival.
Plaintiffs maintain that the fact USC subleased the premises does not mean that USC relinquished all control of the premises, or access to or possession of the premises. Plaintiff asserts that it does not have all the leases and agreements and does not know what rights USC did or did not have during the Music festival. Accordingly, whether USC had control or possession of the premises is a question of fact that cannot be determined on demurrer. (See Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422 [An issue of fact is not properly resolved on a demurrer].)
Plaintiffs also allege that USC had a nondelegable duty to maintain the premises in a safe condition. The nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600–601.)
The Court agrees that without further facts as to USC’s responsibilities under the leases and agreements, the Court cannot on demurrer determine that USC owed no duty when it subleased the premises.
For the stated reasons, the Court OVERRULES USC’s demurrer to the negligence-based causes of action based on the fact it owed no duty of care.
Plaintiff Corniel’s Lack of Standing to Assert 1st, 3rd, and 5th Cause of Action
USC takes the position 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.)
Whether Plaintiff Corniel is a dependent of the decedent under section 377.60 remains a question fact that cannot be determined on demurrer. Plaintiff Corniel has sufficiently pled facts to show she has standing. Therefore, the Court finds that Plaintiff Corniel has standing to assert the first, third, and fifth causes of action.
Defendant’s Demurrer to Plaintiff’s FAC is OVERRULED.
CONCLUSION
Defendant USC’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED.
Moving party to give notice.