Case Name: CHARLES DENNIS, et al. v. LIVE NATION WORLDWIDE, INC., et al.
Case No.: 2015-1-CV-280456 (lead case)

These now consolidated actions arise from an August 22, 2014 incident during which Eric Johnson, Jr. (“Decedent”) was shot and killed at a rap concert held at Shoreline Amphitheatre (“Shoreline”). Decedent worked in the music industry and was backstage discussing arrangements for one of the performers, “Young Jeezy” (Jay Wayne Jenkins), to appear at an after-party in San Jose later that night.

In case no. 2015-1-CV-280456 (“Dennis Action”), Decedent’s three children filed an action originally against Defendant Live Nation Worldwide, Inc. (“Live Nation”), which operated and managed Shoreline during the concert, and Does 1-15. In their original Complaint filed May 11, 2015, the Dennis Plaintiffs asserted claims for (1) negligence, (2) premises liability, and (3) wrongful death (caused by the allegedly negligent operation of Shoreline).

In case no. 2015-1-CV-282859 (“Robinson Action”) Plaintiff Roseanna Robinson, Decedent’s mother and administrator of his estate, filed an action against Live Nation, Shoreline Amphitheater Ltd., Jay Wayne Jenkins (“Jenkins”), The City of Mountain View, and various other individuals. The original and still operative Complaint in the Robinson Action filed July 9, 2015 asserts causes of action for (1) Negligence; (2) Negligent Hiring, Supervision and Retention; (3) Premises Liability; (4) Battery (alleging on information and belief that “one or more” of the individual defendants fired a gun at Decedent); (5) Assault (alleging on information and belief that “one or more” of the individual defendants fired a handgun at Decedent); (6) Public Entity Liability, and; (7) Breach of Contract. The second, fourth, fifth and seventh causes of action are alleged against Defendant Jenkins.

The two actions were consolidated by order of the Court on February 11, 2016. On February 14, 2017 the Dennis Plaintiffs filed their operative First Amended Complaint (“FAC’) adding Jay Wayne Jenkins as a named defendant, purportedly substituted for Doe 1 (see FAC at 11). Currently before the Court are two matters: (1) Defendant Jenkins’ demurrer to the FAC in the Dennis action (line 4) and; (2) Defendant Jenkins’ demurrer to the original Complaint in the Robinson action (line 5).

Line 4
Request for Judicial Notice: In support of the demurrer Defendant Jenkins has requested judicial notice of three documents (exhibits A-C to the request) pursuant to Evidence Code § 452(d) (court records). Exhibit A is an (incomplete) copy of the original Dennis complaint. Exhibit B is a copy of the FAC. Exhibit C is a copy of the Amended Summons served on Defendant Jenkins, filed March 22, 2017. It does not name Jenkins as a substitute for Doe 1.

Judicial notice of all three documents is GRANTED pursuant to Evidence Code §452(d) as the Court has confirmed that exhibit 1 matches the copy of the original Dennis complaint in the court’s file. All three documents are noticed as to their existence and filing dates but not as to the truth of their contents. The Court can and does consider the allegations of the original complaint and the FAC for purposes of analyzing the demurrer.

Demurrer to the Dennis FAC
In ruling on a demurrer, the Court treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Where a demurrer is to an amended complaint, the Court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 [internal quotations omitted].)

Defendant Jenkins only demurs to the FAC’s third cause of action for wrongful death “because it fails to state facts that constitute a cause of action,” and “because said complaint was filed past the statute of limitations . . .” (Demurrer at 2:5-9.) The statute of limitations for a wrongful death claim is two years, running from the death of the decedent. (CCP § 335.1.)

Defendant Jenkins argues that the original Dennis complaint was solely based on a negligence theory, and that the allegations of conduct intended to harm Decedent, newly added in the FAC, do not relate back and are now time-barred as to him. “Plaintiff[s] initially filed a civil action against Live Nation Worldwide, Inc. and Does 1-15 inclusive on May 11, 2015, based in negligence . . . [I]n the Original Complaint, Plaintiffs assert no allegation that any Defendants—including defendants named as Does—shot the decedent. In Plaintiffs’ FAC, filed on February 14, 2017, [plaintiffs] allege that Mr. Jenkins ‘unlawfully killed’ the decedent by shooting him ‘multiple times.’ February 14, 2017 is 5 months and 23 days after August 22, 2016 . . . the date that the statute of limitations expired.” (Jenkins’ Memo. of points and authorities at p. 8:9-19.)

The Dennis Plaintiffs’ original complaint (which the Court may consider for purposes of ruling on the demurrer to the FAC) alleged (at 3) that the failure of “Defendants” (defined as Live Nation and Does 1-15) “to use reasonable security measures such as metal detectors while permitting persons, including guests . . . to enter the Amphitheatre, specifically the backstage area . . . while not having any police officers located backstage foreseeably resulted in the criminal assailant gaining access to the backstage area while unlawfully possessing a firearm, and using that firearm to shoot [Decedent].” The original complaint further alleged that “Defendants” “failed to employ adequate security measures” in various ways and that this “failure to provide proper security measures was a substantial factor in the untimely death” of Decedent. (See original complaint at 11-17.) The third cause of action for wrongful death specifically alleged at 39 that “Defendants negligently, carelessly, recklessly, wantonly, and unlawfully operated and supervised the Shoreline Amphitheatre on August 22, 2014 so as to directly and proximately cause death to [Decedent].” In short the original Dennis complaint, as drafted by their counsel, cannot be reasonably interpreted as asserting anything other than a negligence–based theory of liability against Live Nation and Does 1-15 or alleging that any Defendant acted with the intent to harm Decedent. Substituting a named defendant for one of the Does would still result in only a negligence theory being alleged against that named defendant.

The FAC for the first time added Defendant Jenkins as a named defendant, claiming at 11 that he was “being named as previously named DOE defendant 1.” Exhibit C to Defendant Jenkins’ request for judicial notice establishes that he was served by mail on June 7, 2017 and the summons did not indicate that he was being substituted for Doe 1. The FAC amends the third cause of action for wrongful death to allege that Defendant Jenkins (referred to as “Young Jeezy”) “unlawfully killed [Decedent] at the Shoreline Amphitheatre on August 22, 2014 when he shot him multiple times, such that [Jenkins] directly and proximately caused death to [Decedent].” (FAC at 50.)

Based on the above the wrongful death claim as alleged against Defendant Jenkins is time-barred as the allegations that he (or anyone else) acted with the intent to harm Decedent do not relate back to the original complaint. Furthermore, Defendant Jenkins could not be substituted for one of the Doe defendants as the Dennis Plaintiffs were never ignorant of his identity or his presence at Shoreline when Decedent was shot (see original complaint at 13), making CCP § 474 unavailable even if the allegations of intentional conduct added in the FAC could otherwise be reasonably considered to relate back to the original complaint.

“Section 474 allows a plaintiff who is ignorant of a defendant’s identity to designate the defendant in a complaint by a fictitious name (typically, as a ‘Doe’), and to amend the pleading to state the defendant’s true name when the plaintiff subsequently discovers it. When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is genuinely ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant. ‘The question is whether [the plaintiff] knew or reasonably should have known that he had a cause of action against [the defendant].’ ‘Ignorance of the facts giving rise to a cause of action is the ‘ignorance’ required by section 474, and the pivotal question is, ‘did plaintiff know facts?’ not ‘did plaintiff know or believe that [he] had a cause of action based on those facts?’’” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372, emphasis and brackets in original, internal citations omitted but citing among others, Woo v. Superior Court (1999) 75 Cal.App.4th 169.)

As the Woo court noted, “[a] further and non-procedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay.” (75 Cal.App.4th at 177, internal citations omitted, emphasis and brackets added.)

While the California Courts of Appeal have not taken a uniform approach in interpreting and applying CCP §474, the Court finds the approach taken in decisions such as McClatchy and Woo, supra, to be the most persuasive as it gives meaning to the actual ignorance requirement derived from the plain language of the statute: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and when his true name is discovered, the pleading or proceeding must be amended accordingly.” (Emphasis added.) CCP §474 is not meant to be used as a tactical tool to evade the statute of limitations, particularly in areas such as wrongful death where the Legislature has already made the determination that a relatively short limitations period, running from the death of the decedent, is appropriate.

Accordingly, Defendant Jenkins’ demurrer to the third cause of action is SUSTAINED with 10 days’ leave to amend as this is the first pleading challenge to the wrongful death claim as alleged against Defendant Jenkins. The new allegations of intentional conduct meant to harm Decedent do not relate back to the original Complaint. Defendant Jenkins also cannot be substituted for “DOE 1” under CCP § 474 as 1) the Dennis Plaintiffs were at all relevant times aware of his identity and presence at Shoreline on the night of Decedent’s death (see original Complaint at 13) and knew or reasonably should have known when the original Complaint was filed that they (like Plaintiff Robinson in her action filed a little less than two months later) had a cause of action against Defendant Jenkins for alleged intentional wrongdoing.

The Dennis Plaintiffs are reminded that when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”])

Line 5
Demurrer to Robinson Complaint
Defendant Jenkins demurs to the entire Robinson Complaint on the basis that it fails to state sufficient facts to state a cause of action; to the fourth (Battery) and fifth (Assault) causes of action on uncertainty grounds; to the second (Negligent Hiring, Supervision and Retention), fourth and fifth causes of action on the basis that they fail to state sufficient facts as alleged against him and; to the seventh (Breach of Contract) cause of action on the ground that it is barred by the statute of limitations. (See Demurrer at 2:3-24.)

As an initial matter Defendant Jenkins’ demurrer to the fourth and fifth causes of action on uncertainty grounds is OVERRULED. Uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so bad the responding party cannot reasonably respond. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”]) Defendant’s memorandum of points and authorities fails to explain how either cause of action is uncertain and Defendant’s more substantive arguments against these claims make it clear that he understands what both the fourth and fifth causes of action allege and that there is no true uncertainty.

Defendant Jenkins’ demurrer to the second cause of action for negligent hiring, supervision and retention on the ground that it fails to state sufficient facts is OVERRULED. “An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Federico v. Sup. Ct. (Jenny G.) (1997) 59 Cal.App.4th 1207, 1210-1211, 1214.) A duty to third persons arises “when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed.” (Id. at 1214.)

The Robinson Complaint at 29 and 44 (part of the second cause of action) alleges on information and belief that five named individuals were employees of Defendant Jenkins. The second cause of action further alleges that Defendant Jenkins’ employees (among others) “were unfit to perform the work for which they were hired,” that Defendant Jenkins and the other alleged employers “knew or should have known that their employees were unfit and this unfitness created a particular risk to others,” that the “employees’ unfitness harmed Plaintiff,” that the alleged negligence of Defendant Jenkins and the other employers “in hiring, supervising, and/or retaining their employees was a substantial factor in causing Plaintiff’s harm,” and was “a substantial factor” in causing Decedent’s death. (See Complaint at 45-50.) This adequately states a claim for negligent hiring, supervision and retention.

Defendant Jenkins’ demurrer to the fourth and fifth causes of action for battery and assault respectively on the ground that they both fail to state sufficient facts is OVERRULED. Defendant’s only argument against both claims, that it is insufficient for the Complaint to make “a barebones allegation that Mr. Jenkins committed battery and assaulted the Decedent by firing a handgun at him resulting in his death,” (memorandum of points and authorities at 7:5-6) is unpersuasive. The allegations (in the Complaint at 67 and 75 respectively) that one or more of the “individual defendants” (defined in the Complaint at 2 as including Defendant Jenkins) fired a gun at Decedent and (at 71 and 80 respectively) that as a result of this Decedent died are factual allegations that are accepted as true for purposes of demurrer. Defendant’s assertion that he has not been arrested or charged in relation to Decedent’s death is not a basis for sustaining a demurrer to either cause of action on the ground of failure to state sufficient facts.

Defendant Jenkins’ demurrer to the seventh cause of action for breach of contract is OVERRULED. As noted above, the only ground for demurrer against this cause of action properly raised in Defendant’s Demurrer is that it is barred by the statute of limitations. (See Jenkins’ Demurrer at 2:22-24.) Defendant fails to present any arguments in support of this ground and instead attempts to argue a different ground (failure to state sufficient facts) by asserting that the seventh cause of action, which plainly alleges (Complaint at 87) that a “verbal contract” was breached, fails to comply with an outdated standard for pleading breach of a written contract. (See Construction Protective Services v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199 [“plaintiff may plead the legal effect of the contract rather than its precise language” in an action based on a written contract]; see also Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640 [stating that an oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words].) The Complaint at 87 adequately alleges the existence of an oral contract between Decedent and Defendant Jenkins. The stature of limitations for breach of oral contract is two years. (CCP §339.) The Robinson Complaint was filed within two years of the alleged breach.

Finally Defendant Jenkins’ demurrer to the entire Robinson Complaint on the ground that it fails to state sufficient facts is OVERRULED. Where there are several causes of action alleged in a complaint, a demurrer to the entire complaint may be overruled if any cause of action therein is properly stated. (See Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 Cal.App.3d 24, 36.)