2017-00210365-CU-PO

Travis Duggan vs. Kings Casino, LLC

Nature of Proceeding: Hearing on Demurrer

Filed By: Torlak-Celik, Alma

Defendant King’s Casino, LLC’s (“Defendant”) demurrer to plaintiff Travis Duggan’s (“Plaintiff”) complaint is UNOPPOSED, taken as a concession on the merits, and is SUSTAINED with leave to amend.

Self-represented Plaintiff alleges negligence-premises liability based on an armed robbery he suffered by third party criminal suspects in Defendant’s parking lot. Plaintiff alleges Defendant’s failed to maintain sufficient security to protect against such crimes or provide warnings that the parking lot was unsafe.

Defendant demurs on the grounds that Plaintiff’s complaint fails to state facts sufficient to constitute a cause of action.

A demurrer challenges the legal sufficiency of the complaint on the grounds that it fails

to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e); Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 42-43.) In reviewing a general demurrer, the facts pleaded are assumed to be true and the only issue is whether they are legally sufficient to state a cause of action. “[W]e are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Plaintiff’s complaint alleges the following. After he parked his vehicle at Defendant’s facilities, “two unidentified persons approached him; one was holding a semi-automatic gun and the other carrying a knife.” (Complaint at ¶ 7.) The suspects demanded Plaintiff turn over his money and belongings, which Plaintiff did. (Complaint at ¶ 8.)

Plaintiff then alleges Defendant “failed to maintain the premises in a sufficiently safe manner to prevent certain reasonably foreseeable incidents, specifically, Defendant failed to ensure that security services on the Property were sufficient, given the nature of Defendant’s business, location, and previous incidents.” (Complaint at ¶ 13.) “There were no signs, warnings, or notices to indicate there was a danger present, or that Defendant’s parking lot was particularly unsafe.” (Complaint at ¶ 15.) As a result of Defendant’s failure to maintain the premises in a reasonably safe condition, he suffered injuries. (Complaint at ¶¶ 14, 16.)

Defendant contends Plaintiff’s claim for negligence-premises liability fails because Plaintiff has not plead facts establishing Defendant owed a duty to Plaintiff. Specifically, Defendant contends there are no facts establishing a third party robbery was a reasonably foreseeable incident.

As a general matter there is no duty to act to protect others from the conduct of third parties.” (Morris v. De La Torre (2005) 36 Cal.4th 260, 269.) However, an “exception to th[is] general rule is found in the ‘special relationship’ doctrine. A defendant may owe an affirmative duty to protect another from the conduct of third parties … if he or she has a ‘special relationship’ with the other person.” (Ibid.) Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars and their patrons. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) As explained in Delgado, even if a proprietor, such as the bar in that case, has no special-relationship-based duty to provide security guards or other similarly burdensome measures designed to prevent future criminal conduct (which measures are required only upon a showing of “heightened foreseeability”), such a proprietor nevertheless owes a special-relationship-based duty to undertake reasonable and minimally burdensome measures to assist customers or invitees who face danger from imminent or ongoing criminal assaultive conduct occurring upon the premises. In this regard, it was noted in Delgado that restaurant proprietors owe a special-relationship-based duty to provide “ ‘assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act’ ” (Delgado, supra, 36 Cal.4th at p. 241), and, more to the point, with respect to imminent or ongoing criminal assaultive conduct occurring in the proprietor’s presence, such proprietors have a duty to warn or “take other reasonable and appropriate measures to protect patrons or invitees … .” Indeed, “It is established that [such] business proprietors … owe a duty to their patrons to maintain their premises in a reasonably safe condition, and that this duty includes an obligation to undertake

‘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.’” ( Delgado, supra, at 229, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 and Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121.)

Foreseeability is a “crucial factor” in determining the “existence and scope of a legal duty” and “foreseeability, when analyzed to determine the existence or scope of a duty is a question of law to be decided by the court.” (Delgado, supra, at 237.) “Only when a “heightened” degree of foreseeability exists, — shown by prior similar incidents or other indications of reasonably foreseeable risk of violent criminal assaults in that location – does the scope of a business proprietor’s special-relationship-based duty include an obligation to provide guards to protect the safety of patrons.” (Id.at 240 [emphasis in original]; Ann M., supra, at 679.) In the absence of such knowledge, the possessor of land owes no duty to protect visitors from unprecedented criminal acts. (Jamison v. Mark C. Bloome Co. (1980) 112 Cal.App.3d 570, 578.)

Defendant argues Plaintiff has failed to allege facts demonstrating a robbery by third parties in the parking lot was reasonably foreseeable. Defendant contends while Plaintiff has generally referenced “previous incidents,” he has failed to plead the nature of the previous incidents, such as whether those incidents were similar or the same to the crime at issue here. Defendant further contends Plaintiff has failed to plead facts demonstrating Defendant had knowledge that its parking lot was unsafe and that certain security measures or warnings were needed to protect against reasonably foreseeable robberies.

The Court agrees and sustains the demurrer on this basis. Plaintiff’s allegations referring to “previous incidents” of an unknown nature are insufficient to meet the heightened level of foreseeability to find negligence for a third party crime. As currently drafted, it is unclear as to how these “previous incidents” are related to, or create a foreseeable risk of, armed robbery. As drafted, this may have been the first instance that an armed robbery incurred on Defendant’s premises. Plaintiff has also failed to allege any facts indicating Defendant had knowledge of the alleged risk of armed robbery in its parking lot. While Defendant operates a casino, this is insufficient by itself to conclude that armed robbery in its parking lot is a reasonably foreseeable criminal act for which Defendant owes a duty to its patrons to protect against. Further, Plaintiff’s failure to oppose the motion is viewed as a concession on the merits.

Defendant also argues Plaintiff’s complaint fails to plead facts that the presence of additional security measures would have, in fact, prevented the robbery. Therefore, Defendant contends it is only speculation that Defendant’s alleged breach of duty was the proximate cause of Plaintiff’s injuries.

Defendant’s argument implies that at this stage of the proceedings, Plaintiff must provide evidence of a causal connection. Not so. Indeed, while proximate cause is a requisite element of negligence, at this stage, Plaintiff need only allege facts supporting each element of his cause of action. Plaintiff need not yet proffer any evidence in support. Plaintiff has alleged his injuries were the result of Defendant’s failure to maintain the premises by providing sufficient security. (Complaint at ¶¶ 13, 14.) This is sufficient at this stage. Accordingly, the demurrer is not sustained on this particular basis.

With respect to the second cause of action, the Court clarifies that “there is no

independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.” ( See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984-985 (citation omitted) (citing Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590.) “That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Id. (citing Marlene F., 48 Cal.3d at 590).)

Accordingly, for the same reasons discussed above, Plaintiff’s second cause of action also fails to sufficiently allege facts establishing reasonable foreseeability, which is a required element to establish duty.

Defendant’s demurrer is therefore SUSTAINED. Leave to amend is granted even though the demurrer is unopposed, as this is the first challenge to the pleadings and the Court cannot say as a matter of law that no cause of action can be stated.

Plaintiff shall file and serve a First Amended Complaint no later than January 23, 2018

. Defendant’s response shall be filed and served within 30 days of service of the amended pleading, 35 days if served by mail.