Case Number: BC694048 Hearing Date: January 07, 2019 Dept: 3

WILLIAM LOPEZ,

Plaintiff,

vs.

GREG ABALOS, et al.,

Defendant(s).

Case No.: BC694048

[TENTATIVE] ORDER SUSTAINING DEMURRER TO COMPLAINT; FINDING MOTION TO STRIKE MOOT

Dept. 3

1:30 p.m.

January 7, 2019

Defendants Greg Abalos and Amy Abalos’ Demurrer is SUSTAINED in its entirety without leave to amend. Defendants Greg Abalos and Amy Abalos’ Motion to Strike is MOOT.

I. Background Facts

Plaintiff William Lopez (“Plaintiff”) alleges that on October 22, 2017, Defendant Ivan Del Rio (“Del Rio”) assaulted Plaintiff by kicking and punching Plaintiff in the head and back, causing physical and emotional injuries. Plaintiff further alleges that Defendants Greg Abalos and Amy Abalos (“Abalos Defendants”) negligently owned, operated, and maintained the premises to host a party where the subject incident occurred. On February 15, 2018, Plaintiff filed the operative complaint for negligence and “intentional tort.”

On November 15, 2018, the Abalos Defendants filed the instant demurrer to the complaint on grounds that the complaint generally fails to state any facts sufficient constitute a cause of action against moving Defendants. Plaintiff has not 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 the Abalos Defendants have fulfilled the meet and confer requirement prior to filing this demurrer. (See Gerber Decl.)

b. First Cause of Action: Negligence

The Abalos Defendants contend that the first cause of action for negligence fails in that Plaintiff fails to sufficiently allege a duty owed by moving Defendants.

The elements for 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.

Here, the Court finds that the complaint fails to allege any facts under which the Abalos Defendants owed a duty to prevent the criminal acts of Del Rio or to come to the aid of Plaintiff based on the authorities cited in the moving papers.

Based on the foregoing, Plaintiff’s claim for negligence fails as to the Abalos Defendants. Plaintiff has failed to file opposition indicating how the complaint could be amended to state a claim against the Abalols Defendants. As such, Defendants’ demurrer is SUSTAINED without leave to amend.

c. Second Cause of Action: Intentional Tort

The Abalos Defendants maintain that the second cause of action for itentional tort fails in that there are no facts alleged against movants.

In review of the allegations advanced in Paragraph IT-1, the Court notes that the entire body of the allegations within the second cause of action deal with actions allegedly perpetrated by Defendant Ivan Del Rio.

As such, Plaintiff’s claim fails as to the Abalos Defendants. Accordingly, Defendants’ demurrer to the second cause of action is SUSTAINED without leave to amend.

d. Motion to Strike

Defendants’ unopposed motion to strike is MOOT.

Moving Party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Case Number: BC717190 Hearing Date: January 07, 2019 Dept: 3

BLANCA ROSALES,

Plaintiff(s),

vs.

BRENDA MARGARITA ALANIS, ET AL.,

Defendant(s).