Case Number: BC611026 Hearing Date: February 06, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

DAVID WEI LIN , et al.;

Plaintiff,

v.

DEYUN SHI , et al.;

Defendants.

Case No.: BC611026

Hearing Date: December 10, 2018

[TENTATIVE] order RE:

Demurrer & motion to strike TO THE complaint

Background

Plaintiffs David Wei Lin (“David Lin”) and Vicki Wenchih Huang (“Plaintiffs”) filed a complaint on February 22, 2016, asserting a single cause of action for wrongful death, alleging that Deyun Shi (“Defendant Shi”) murdered their two children, William Davidson Lin and Anthony Davidson Lin (“Decedents”), on January 22, 2016. On January 20, 2017, Plaintiffs filed a doe amendment, substituting in Defendant Yujing Lin (“Defendant Lin”), who is Defendant Shi’s wife, as Doe 1. On November 6, 2018, Defendant Lin filed a demurrer to the Complaint and a motion to strike the claim for punitive damages. After the Court issued a tentative to sustain the demurrer with leave to amend, Plaintiffs took the demurrer off-calendar and filed a first amended complaint. Defendant Lin demurs to the first amended complaint and filed a motion strike the prayer for punitive damages, as well as other portions of the first amended complaint.

LEGAL STANDARD

Demurrer

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. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.) 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.) No other extrinsic evidence may be considered.

A special demurrer for uncertainty, per Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendants cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Motion to Strike

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. (CCP § 435(b)(1); Cal. Rules of Court, 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. (CCP §§ 436(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”].)

DISCUSSION

Plaintiffs assert a wrongful death claim against Defendant Lin. In order to do so, a plaintiff must allege a wrongful act or neglect on the part of one or more persons that caused the death of another. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404 [citing CCP § 377.60].) To establish the “wrongful act or neglect” element, a plaintiff must rely on an independent legal theory of liability, such as negligence or strict liability. (Id. at 390.) The well-known elements of negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty;

(3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

In the original complaint, Plaintiffs’ theory was that Defendant Lin failed to stop her husband, Defendant Shi, husband from committing murder, failed to warn Plaintiffs of the danger, and/or failed to protect Decedents from Defendant Shi. In order to pursue these theories of liability, Plaintiffs must establish that there was a “special relationship” that created a duty for Defendant Lin to take action. A person is “ordinarily not liable for the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 279.) The mere fact that Defendant Shi and Defendant Lin were married, standing alone, is not sufficient to create such a duty. (See Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 717.) Therefore, the Court issued a tentative to sustain the demurrer with leave to amend.

The first amended complaint alleges that Defendant Lin planned to divorce Defendant Shi but did not want to divide the marital property, so she sought to have him incarcerated. (First Amended Complaint at ¶ 7:11-14.) The first amended complaint alleges that “[w]ith full knowledge of Shi’s dangerous temperament, Lin incited Shi to violence by blaming their marital problems on Plaintiff David Lin.” (Id. at ¶ 7:15-17.) The first amended complaint further alleges that Defendant Lin “committed these acts intentionally and/or negligently with knowledge that Shi would retaliate against David Lin.” (Id. at ¶ 7:16-18.)

The Court sustains the demurrer. To the extent the first amended complaint asserts the same theory that Defendant Lin did not stop Defendant Shi, warn Plaintiffs, and/or protect her nephews, it suffers from the same defect, because Plaintiffs still have not established that Defendant Lin owed a duty to her nephews. “In general, one owes no duty to control the conduct of a third person to prevent him from causing physical harm to another, absent a special relationship between the defendant and either the person whose conduct needs to be controlled or the foreseeable victim of that conduct. (Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013.)

There is an exception to this rule when “the defendant through his or her own action (misfeasance) has made the plaintiff’s position worse and has created a foreseeable risk of harm from the third person.” (Pamela L. v. Farmer (1980) 112 Cal. App. 3d 206, 209.) “An act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of … a third person which is intended to cause harm, even though such conduct is criminal.” (Ibid. (quoting Rest. 2d. of Torts, §302B).) For example, in Pamela L. v. Farmer, the defendant knew that her husband had previously molested children, and she increased the risk to children by telling parents that their children would be safe when only her husband was present. (Farmer, 112 Cal. App. 3d at 209.)

By contrast, in the instant case, the first amended complaint alleges no facts to establish that Defendant Lin knew or should have known that Plaintiffs’ children would be in danger. The first amended complaint alleges only that Defendant Shi had a “dangerous temperament.” It does not allege any specific past acts of violence by Defendant Shi against Plaintiffs, their children, or anyone else. It does not allege any facts that suggest Defendant Lin knew about her husband’s propensity for murder. It does not allege any facts suggesting that Defendant Lin should have known that Defendant Shi would murder Plaintiffs’ two children—rather than David Lin—when provoked in this manner. Simply, the first amended complaint contains no facts that would support the inferential leap that Defendant Lin blaming David Lin for their marital problems would result in her husband murdering his children or that Defendant Lin knew or should have known about this potential when she told her husband. In other words, the first amended complaint does not allege sufficient facts that Defendant Lin’s comment would increase the risk of murder of Plaintiffs’ children (rather than David Lin), or that Defendant Lin knew or should have known that would occur.

Plaintiffs argue that the first amended complaint alleges that Defendant Lin was an active participant in the crime because she instigated the violence. Again, the first amended complaint lacks sufficient factual allegations. It does not allege that Defendant Lin was an active participant. Nor does it allege that Defendant Lin was a co-conspirator. The first amended complaint alleges only that she told Defendant Shi that their marital problems were because of David Lin, knowing that he would then murder his children. As discussed, there are no facts to support this conclusory allegation.

The Court considered sustaining the demurrer without leave to amend, as this is the second time Plaintiffs have attempted to correct the defects in their case. Nevertheless, the Court will grant leave to amend because, in theory, Plaintiffs may be able to allege additional facts to address these defects. The Court denies the motion to strike as moot.

CONCLUSION AND ORDER

The Court sustains the demurrer with leave to amend. Any amendment shall be filed within thirty (30) days of this order. The Court denies the request for judicial notice and the motion to strike as moot, given the Court’s order on the demurrer. Defendant Lin shall give notice and file proof of such with the Court.

DATED: February 6, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Balbuena, ¶ 3.) Plaintiff’s motion is granted per Code of Civil Pr