Case Number: BC685757 Hearing Date: March 21, 2018 Dept: 92

SEVAG SALIBIAN et al.,

Plaintiff(s),

vs.

Bank of America Corporation et al.,

Defendant(s).

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Case No.: BC685757

[TENTATIVE] ORDER PARTIALLY OVERRULING THE DEMURRER

Dept. 92

1:30 p.m.

March 21, 2018

Defendant Bank of America Corporation’s Demurrer to the Complaint is OVERRULED as to the first cause of action for negligence and SUSTAINED as to the second cause of action for premises liability. The Court is inclined to sustain the demurrer without leave to amend unless Plaintiff can make an offer of proof at the hearing on how the premises liability claim can be amended to sufficiently state a claim. In the case that leave is granted, Plaintiff has fifteen days’ leave to amend, otherwise, Bank of America Corporation is ordered to file an answer within ten days of this order.

I. Background Facts

On December 4, 2017, plaintiffs Sevag Salibian, Sevan Salibian, Haig Salibian and the Estate of Maria Salibian (collectively “Plaintiffs”) filed a complaint against defendants Bank of America Corporation (“Bank of America”), Harry Gill, Cynthia Lascelles and Does 1 to 30 alleging causes of action for negligence and premises liability.

The complaint alleges that: 1) on October 6, 2017, Maria Salibian (“Decedent”) was attacked and robbed by unknown assailants while on premises owned by Bank of America, after visiting Bank of America as a patron. (Complaint ¶ 1); 2) Decedent eventually died from the injuries she suffered. (Id.); and 3) The defendants failed to provide adequate precautions and measures for the safety and security of Decedent despite knowing that similar acts of criminal activity had occurred on the subject premises and on premises of adjacent businesses in the neighborhood. (Id. ¶¶ 12-13.)

On February 20, 2018, Bank of America filed a demurrer. On March 8, 2018, Plaintiff filed an opposition.

II. Legal Standard

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 Dept. of Water and 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 Court (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, 147 Cal.App.4th at 747.)

III. Discussion

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See CCP § 430.41.) The Court notes that Bank of America has fulfilled the meet and confer requirement prior to filing this demurrer. (See Declaration of William E. Pallares.)

b. Failure to Allege Duty Based on Third Party Criminal Conduct

Bank of America argues that Plaintiff cannot maintain causes of action for negligence and premises liability based on wrongful death because the complaint fails to allege facts establishing that Bank of America owed a duty of care. Specifically, Bank of America argues that the complaint fails to allege specific facts to show that the third party criminal conduct that injured Decedent was foreseeable. Plaintiff opposes on the ground that the complaint sufficiently alleges that Bank of America owed a duty of care because Bank of America owned the subject premises and despite knowing that similar prior incidents of violence had occurred on the subject premises previously, Bank of America failed provide its patrons such as Decedent, adequate security measures. Plaintiff also argues that Bank of America is improperly attempting to turn the current demurrer into a motion for summary judgment.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

A landlord owes its tenants and patrons a general duty of maintenance, and this duty has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146; see also Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.)

The Court finds that the complaint sufficiently alleges that Bank of America owed a duty of care and breached that duty. The negligence and the premises liability causes of action are premised on the fact that a third-party physically injured Decedent, while Decedent as a patron of Bank of America was on premises owned Bank of America. (Complaint ¶ 1.) Notably, the complaint alleges that the defendants were aware that similar incidents of criminal activity have occurred previously on Bank of America’ premises and on the premises of other adjacent businesses in the neighborhood. (Id. ¶¶ 12 and 22.) Additionally, the complaint alleges that the defendants failed to provide sufficient precautions and measures for the safety and security of their customers despite being able to reasonably anticipate similar criminal activity on the subject premises based on prior similar criminal acts. (Id. ¶¶ 13 and 25.)

Bank of America apparently argues that specific details of prior similar incidents of criminal activity must be pled but cites no authority requiring such allegations at the pleading stage. Bank of America does cite to Melton v. Boustred (2010) 183 Cal.App.4th 521, where party guests brought an action against the party host for negligence and premises liability after the guests were attacked by a third party. Notably, the Court of Appeal affirmed a trial court’s order sustaining a demurrer to these causes of action without leave to amend. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 541.)

The Court finds that Melton is distinguishable from the current case because unlike here, in Melton, the operative complaint had no allegation that the defendant host had knowledge of prior similar incidents of violent crime on the landowner’s premises. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 537.) Thus, the Court of Appeal in Melton found that the criminal act was not foreseeable. (Id.) Here, the complaint alleges that the defendants, including Bank of America, were aware of prior similar criminal activity on their premises and thus were able to reasonably anticipate such criminal activity and therefore owed Decedent a duty to provide adequate security measures. (Complaint ¶¶ 12 and 22.) Thus, the Court finds that the complaint sufficiently alleges that Bank of America owed Decedent a duty of care and breached that duty.

Accordingly, the demurrer to the first and second causes of action for failure to allege a duty is OVERRULED.

c. Duplicative Causes of Action

Bank of America argues that the premises liability cause of action fails as it is duplicative of the cayuse of action for negligence. The opposition argues that premises liability is a distinct cause of action that controls the manner of recovery for injuries that are sustained by an individual as a result of a condition of the property as opposed to recovering for injuries that are sustained as a result of a negligent activity on the property.

A demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

Here, Plaintiff alleges two causes of action for negligence and premises liability. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998.) As such, the theory of recovery for these causes of action require Plaintiff to prove the same elements. The theory of recovery for these causes of action is also the same, namely that Bank of America was negligent in not providing adequate precautions and measures for the safety and security of Decedent. (Complaint compare ¶¶ 12-13 with ¶¶ 22-23.) Furthermore, the factual basis for both of these causes of action is that Decedent was injured when she was attacked by a third-party criminal while on Bank of America’s premises. (Complaint. ¶ 1.) The opposition seems to argue that the premises liability claim is distinct from the general negligence claim because it is based on a dangerous condition of Bank of America’s property, however, as noted above, these two causes of action are based on the same allegations.

Accordingly, the Court finds that the premises liability cause of action is duplicative of the general negligence cause of action because it adds nothing to the complaint by way of fact or theory of recovery. Thus, the demurrer to the premises liability cause of action is SUSTAINED as duplicative. The Court is inclined to sustain the demurrer without leave to amend unless Plaintiff can make an offer of proof at the hearing on how the premises liability claim can be amended to sufficiently state a claim.

Moving Party is ordered to give notice.