This appeal is taken from an order sustaining a demurrer without leave to amend. At issue is defendant's liability for hosting a party where plaintiffs were attacked by unidentified individuals. We conclude: (1) because defendant did not owe plaintiffs a duty of care, plaintiffs' negligence claims fail; (2) because plaintiffs' nuisance claim merely restates their negligence claims, it also fails; and (3) amendment cannot cure the defects in plaintiffs' complaint. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties to this action are Cody Melton, Mike Richard Kelly, and Jesse A. Maldonado (collectively, plaintiffs), and Clive Boustred (defendant).
On May 5, 2007, defendant held a party at his residence featuring live music and alcoholic beverages. Defendant advertised the party using an open invitation on the social networking site, MySpace.com. Upon arriving at the party, plaintiffs were attacked, beaten, and stabbed by a group of unknown individuals. They sustained serious injuries.
Proceedings in the Trial Court
Plaintiffs brought suit against defendant, asserting claims for negligence and premises liability. Defendant demurred to the original complaint. The court sustained the demurrer with leave to amend.
In March 2008, plaintiffs filed their first amended complaint, which included further factual allegations; it also added a cause of action for nuisance. Plaintiffs' amended complaint thus asserted four causes of action: (1) negligence; (2) premises liability; (3) public nuisance; and (4) battery, asserted against certain "Doe" defendants only.
Defendant again demurred. The trial court sustained his demurrer, this time without leave to amend.
Plaintiffs brought this appeal from the order sustaining defendant's demurrer.
As a framework for assessing plaintiffs' contentions, we begin by summarizing the general legal principles that govern demurrers.
I. Legal Principles
"A general demurrer searches the complaint for all defects going to the existence of a cause of action and places at issue the legal merits of the action on assumed facts." (Carman v. Alvord (1982) 31 Cal.3d 318, 324 [182 Cal.Rptr. 506, 644 P.2d 192].)
On appeal from the sustention of a demurrer, "we independently review the complaint to determine whether the facts alleged state a cause of action under any possible legal theory." (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 998 [27 Cal.Rptr.3d 583].) We will affirm "if proper on any grounds stated in the demurrer, whether or not the court acted on that ground." (Carman v. Alvord, supra, 31 Cal.3d at p. 324.) On appeal, "the plaintiff bears the burden of demonstrating that the trial court erred" in sustaining the demurrer. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879 [6 Cal.Rptr.2d 151].)
"In reviewing the sufficiency of a complaint against a general demurrer, we 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.'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58]; accord, Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [6 Cal.Rptr.3d 457, 79 P.3d 569].) Further, "we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan, at p. 318; see Schifando v. City of Los Angeles, at p. 1081.) "If the complaint states a cause of action under any
"If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment." (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) "As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459 [80 Cal.Rptr.2d 329].) "Nevertheless, where the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result." (Ibid.)
With those principles in mind, we consider whether plaintiffs' first amended complaint states causes of action for negligence or for public nuisance. As to each type of claim, we begin by summarizing relevant principles of the governing substantive law. We then apply those principles to the case at hand.
A. Negligence Claims
1. Substantive Law
These same concepts apply to premises liability claims. Generally speaking, "a landowner has a duty to act reasonably in the management of property `in view of the probability of injury to others.'" (Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1453 [80 Cal.Rptr.3d 512] (Garcia), quoting Rowland v. Christian, supra, 69 Cal.2d at p. 119.) "In the case of a landowner's liability for injuries to persons on the property, the determination of whether a duty exists" involves balancing the Rowland factors set forth above. (Wiener, supra, 32 Cal.4th at p. 1145; accord, Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 430 [34 Cal.Rptr.3d 677] (Rinehart).)
"The existence of a duty is a question of law for the court." (Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at p. 1188.)
b. Liability for Third Party Conduct
A legal duty may arise from affirmative acts "where 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. In such cases the question of duty is governed by the standards of ordinary care." (Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209 [169 Cal.Rptr. 282]; see Lugtu v. California Highway Patrol, supra, 26 Cal.4th at p. 716; Weirum, supra, 15 Cal.3d at p. 49.)
By contrast, nonfeasance generally does not give rise to a legal duty. The underlying premise is that "a person should not be liable for `nonfeasance' in failing to act as a `good Samaritan.'" (Pamela L. v. Farmer, supra, 112 Cal.App.3d at p. 209.) In other words, "one `who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another' from the acts of a third party." (Garcia, supra, 164 Cal.App.4th at p. 1453, fn. 3, quoting Williams v. State of California (1983) 34 Cal.3d 18, 23 [192 Cal.Rptr. 233, 664 P.2d 137].) Thus, absent misfeasance, "as a general matter, there is no duty to act to protect others from the conduct of third parties." (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 [30 Cal.Rptr.3d 145, 113 P.3d 1159] (Delgado).)
Foreseeability is balanced against "the burden of the duty to be imposed. Where the burden of prevention is great, a high degree of foreseeability is usually required; whereas where there are strong public policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required." (Rinehart, supra, 133 Cal.App.4th at p. 431.)
"In each case, however, the existence and scope of a property owner's duty to protect against third party crime is a question of law for the court to resolve." (Castaneda, supra, 41 Cal.4th at p. 1213.)
In their amended complaint, plaintiffs allege that defendant's use of MySpace to promote his party "constituted an unlimited, unrestricted and widely broadcast party invitation to the general public to converge at defendants [sic] property." They further allege that the party "was known to include music and alcohol consumption." Plaintiffs assert that defendant "knew, and in the exercise of reasonable care should have known, that to do so would expose plaintiffs and other guests to an unreasonable risk of bodily harm arising from: (1) an unregulated publicly advertised event involving the consumption of alcohol, dancing, live music, and DJ services; (2) without restriction on the number or identity of persons attending; and (3) with no attempt to control admission or provide security or protection for attendees." They further assert that defendant "knew, and should have known, that such actions were highly likely and substantially certain to attract gang members to defendants' property, to attract violent youths to defendants' property, to
In their opening brief on appeal, plaintiffs argue that defendant owed them a duty of care "not to actively create an out-of-control and dangerous public MySpace party" at his residence. Plaintiffs characterize defendant's unrestricted MySpace invitation as "active conduct of a property owner" that can give rise to tort liability for the third party criminal assault against them. In response, defendant cites the general rule that there is no duty to act to protect others from the actions of third parties. He also maintains that the assault was minimally foreseeable, while the burden of protecting against it was great.
We conclude that no legal duty arose under the circumstances present here, since this case involves neither misfeasance nor a special relationship. That conclusion is bolstered by assessing the foreseeability of the risk, the burden of preventing the harm, and the other Rowland factors.
a. No legal duty exists in this case, because defendant did not create the peril that injured plaintiffs.
Under the facts alleged here, we conclude, defendant did not engage in any active conduct that increased the risk of harm to plaintiffs. As a starting point, we accept as true plaintiffs' factual allegation that defendant issued "an unlimited, unrestricted and widely broadcast" invitation to a party at his home, which was "to include music and alcohol consumption." As we now explain, however, defendant's conduct in issuing that invitation did not create the peril that harmed plaintiffs.
We find guidance on this point in two cases involving negligent (not criminal) third party conduct: Weirum, supra, 15 Cal.3d 40, and Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398 [1 Cal.Rptr.3d 762] (Sakiyama).
In Sakiyama, two teenagers were killed and another two were injured in a single-car crash, after leaving an all-night rave party hosted at the defendant's
In Weirum, the defendant, a "rock radio station with an extensive teenage audience conducted a contest which rewarded the first contestant to locate a peripatetic disc jockey. Two minors driving in separate automobiles attempted to follow the disc jockey's automobile to its next stop. In the course of their pursuit, one of the minors negligently forced a car off the highway, killing its sole occupant." (Weirum, supra, 15 Cal.3d at p. 43.) Finding a basis for duty in the defendant's conduct, the court reasoned: "Money and a small measure of momentary notoriety awaited the swiftest response. It was foreseeable that defendant's youthful listeners, finding the prize had eluded them at one location, would race to arrive first at the next site and in their haste would disregard the demands of highway safety." (Id. at p. 47.) Affirming a jury verdict against the station, the high court concluded that "reckless conduct by youthful contestants, stimulated by defendant's broadcast, constituted the hazard to which decedent was exposed." (Ibid.) Under those circumstances, the court found "little doubt" that "an act of misfeasance" was involved. (Id. at p. 49.) Liability thus was properly predicated on the defendant's "creation of an unreasonable risk of harm" to the decedent. (Ibid.)
Factually, the crux of the difference between Weirum and Sakiyama is this: In Weirum, "hazardous driving by teenagers was a necessary component ..." of the conduct at issue, whereas in Sakiyama, "the rave party was simply a party attended by teenagers." (Sakiyama, supra, 110 Cal.App.4th at p. 408, discussing Weirum, supra, 15 Cal.3d at pp. 47-48.)
Since defendant did not engage in active conduct that increased the risk of harm to plaintiffs, there is no basis for imposing a legal duty on him to prevent the harm inflicted by unknown third persons. (Delgado, supra, 36 Cal.4th at p. 235 [no liability for criminal third party conduct]; Sakiyama, supra, 110 Cal.App.4th at p. 402 [no liability for negligent third party conduct]; cf. Pamela L. v. Farmer, supra, 112 Cal.App.3d at p. 209 [liability where the defendant's conduct increased the risk of criminal third party conduct]; Weirum, supra, 15 Cal.3d at p. 49 [liability where the defendant's conduct increased the risk of negligent third party conduct].) This case thus falls under the general rule that "absent a special relationship, an actor is under no duty to control the conduct of third parties." (Weirum, at p. 48.)
b. There is no special relationship giving rise to a legal duty.
Here, given defendant's nonfeasance and the absence of a special relationship, defendant had no legal duty to protect plaintiffs from the third party criminal conduct that harmed them. That determination is strengthened by assessing the foreseeability of the risk, the burden of preventing the harm, and the other Rowland factors, a process that we now undertake.
c. The criminal attack was not reasonably foreseeable.
In determining whether this heightened standard of foreseeability has been established, the defendant's knowledge is critical. (See Rest.2d Torts, § 314A, com. e, p. 120 ["defendant is not liable where he neither knows nor should know of the unreasonable risk ..."].) When the court engages "in any analysis of foreseeability, the emphasis must be on the specific, rather than more general, facts of which a defendant was or should have been aware." (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 957 [30 Cal.Rptr.2d 690].)
In this case, the complaint asserts "that defendant knew or should have known" that his actions in hosting a party with music and alcohol, in promoting it on the Internet, and in failing to control admission to the party "would expose plaintiffs and other guests to an unreasonable risk of bodily harm" and would "attract gang members to defendants' property, ... attract violent youths to defendants' property, ... create a dangerous condition on defendants' property, and ... result in injuries to persons attending the party and others." Because those assertions are wholly conclusory, however, we need not and do not treat them as true. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318 [demurrer does not admit "`contentions, deductions or conclusions of fact or law'"].)
Stripped of its bare contentions, the complaint contains no allegations that defendant was aware that his invitation would result in the criminal assault on plaintiffs. (Cf. Martinez v. Bank of America (2000) 82 Cal.App.4th 883, 891 [98 Cal.Rptr.2d 576] [where the defendant bank "had no knowledge of the dogs' allegedly vicious propensity, the harm was not foreseeable and the Bank had no duty to take measures to prevent the attack"].)
For similar reasons, this case is also distinguishable from Pamela L. v. Farmer, supra, 112 Cal.App.3d 206. In that case, the defendant invited neighborhood children to her home while her husband Richard was there alone, allegedly "with knowledge that Richard had molested women and children in the past and that it was reasonably foreseeable he would do so again if left alone with the children on the premises." (Id. at p. 210.) Given those facts, the defendant "could be held to have unreasonably exposed the children to harm." (Ibid.) "Assuming the allegations of Richard's past conduct and [the defendant's] knowledge thereof were adequately proved, the most important factor, foreseeability of harm, is great." (Id. at p. 211.)
Defendant's lack of knowledge likewise sets this case apart from Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490 [229 Cal.Rptr. 456, 723 P.2d 573]. There, the plaintiff demonstrated that the defendant condominium association "was on notice that crimes were being committed" against its residents and the pleading also showed "affirmatively that defendant was aware of the link between the lack of lighting and crime." (Id. at p. 503.) Under those circumstances, the plaintiff "alleged facts sufficient to show the existence of a duty" on the defendant's part. (Ibid.)
In their reply brief, plaintiffs rely on "common sense" as support for their assertion that defendant should have known that his actions created a peril. They argue that "a homeowner of common sense would know that a public invitation posted on MySpace to a free party offering music and alcohol was substantially certain to result in an injury to someone." More specifically, plaintiffs say, "anyone with common sense would know" that such conduct "would bring [plaintiffs] into contact with persons who were peculiarly likely to commit violent crime." According to plaintiffs: "Common sense is sufficient to inform against the act, and if common sense is not a measure of reasonableness, the meaning is hard to imagine."
An injury is reasonably foreseeable only if its occurrence is likely enough in modern daily life that reasonable people would guard against it. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57 [192 Cal.Rptr. 857, 665 P.2d 947]; Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 307 [34 Cal.Rptr.2d 498]; see Sakiyama, supra, 110 Cal.App.4th at p. 407 [the foreseeability requirement was met since "the party was `sufficiently likely to result in auto accidents' which would injure both rave attendees and members of the general public"].) With criminal conduct, an "extraordinarily high degree of foreseeability" is necessary. (Garcia, supra, 164 Cal.App.4th at p. 1457.)
d. The security measures proposed by plaintiffs are unduly burdensome.
In this case, plaintiffs posit two types of precautionary measures: providing security at the party and limiting the invitees.
Concerning security, the complaint alleges that defendant "had a duty to take affirmative action to control, guard against, and limit the wrongful acts of third parties which threatened the physical safety of plaintiffs and other guests" and that a "reasonable person in defendants' position would have ... taken the proper steps to ensure adequate security in order to prevent the occurrences of violence and to protect his guests' physical safety."
The other security measure proposed by plaintiffs is restriction of the guest list. According to the complaint, the MySpace.com Web site has tools that permit users to limit invitations to "friends" only, which defendant did not
We disagree with plaintiffs' assessment of the burden of limiting the guest list. In our view, the proposed measure is objectionable on several grounds, including vagueness, lack of efficacy, and burdensomeness in terms of social cost. (See Wiener, supra, 32 Cal.4th at p. 1147.)
First, plaintiffs' proposal is vague. Plaintiffs vacillate on whether the list should be limited to individuals personally known to the host or whether it also could include "acquaintances, or even friends of acquaintances." Moreover, as defendant points out, any attempt to define any of those categories will prove slippery.
Second, there is no basis for finding that the proposed security measure would be effective in preventing the harm. Since the assailants who attacked plaintiffs were never identified or apprehended, there is no way to know whether they were among defendant's friends, acquaintances, or friends of acquaintances, all of whom presumably could be invited under plaintiffs' proposal. (Cf. Castaneda, supra, 41 Cal.4th at p. 1217 ["proposed screening" of housing applicants' criminal records was not "likely to be especially effective" in identifying gang affiliation]; Rinehart, supra, 133 Cal.App.4th at p. 435 [no indication that better supervision or upkeep "would have prevented the incident"].) "No one really knows why people commit crime, hence no one really knows what is `adequate' deterrence in any given situation." (7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905 [172 Cal.Rptr. 528]; accord, Ann M., supra, 6 Cal.4th at p. 679.)
e. Other considerations do not support a finding of duty.
Foreseeability and the burden to the defendant "have evolved to become the primary factors considered in every case," but one or more of the "remaining Rowland factors ... may apply in any given case to alter the balance in light of policy considerations." (Vasquez v. Residential Investments, Inc., supra, 118 Cal.App.4th at pp. 280-281, fn. 5; accord, Castaneda, supra, 41 Cal.4th at p. 1213.) In this case, none of those factors operates to alter the no-duty determination reached here. For example, as discussed above, defendant's "conduct has no close connection to the injury suffered." (Martinez v. Bank of America, supra, 82 Cal.App.4th at p. 896; cf. Pamela L. v. Farmer, supra, 112 Cal.App.3d at p. 211.) "For the same reason, we are unable to perceive any moral blame on [defendant's] part." (Martinez v. Bank of America, at p. 896; cf. Pamela L. v. Farmer, at p. 211.)
In the absence of a legal duty, no negligence claim can be stated against defendant. (Wiener, supra, 32 Cal.4th at p. 1145.) The trial court thus acted properly in sustaining defendant's demurrer to the first and second causes of action of plaintiffs' amended complaint, for negligence and premises liability.
We now turn to plaintiffs' sole remaining claim against defendant, their third cause of action, which asserts public nuisance.
B. Public Nuisance Claim
1. Substantive Law
In this case, plaintiffs' amended complaint alleges no additional facts in support of the nuisance claim. That claim thus relies entirely on the facts asserted in plaintiffs' causes of action for negligence and premises liability.
As framed by plaintiffs' complaint, the "nuisance cause of action was merely a clone of the first cause of action using a different label." (El Escorial Owners' Assn. v. DLC Plastering, Inc., supra, 154 Cal.App.4th at p. 1349.) It thus falls with the negligence causes of action. (Ibid.; Pamela W. v. Millsom, supra, 25 Cal.App.4th at p. 954, fn. 1.)
Resisting this conclusion, plaintiffs rely on Birke v. Oakwood Worldwide, supra, 169 Cal.App.4th 1540. That case does not assist them, however. In Birke, the court painstakingly discussed the plaintiff's detailed factual allegations of public nuisance. (Id. at pp. 1548, 1551-1552.) It concluded that the plaintiff had "pleaded a cause of action for public nuisance sufficient to withstand a demurrer." (Id. at p. 1543.) The plaintiff's alternate claim that "even if the public nuisance claim fails, Birke alleged facts that stated a cause of action against Oakwood for negligently increasing her risk of cancer ..." was not addressed. (Id. at p. 1547.) For that reason, the Birke case sheds no light on the dispositive question here: whether "the nuisance claim is a negligence claim." (El Escorial Owners' Assn. v. DLC Plastering, Inc., supra, 154 Cal.App.4th at p. 1349.)
To sum up, plaintiffs' cause of action for public nuisance has no independent vitality, because it merely restates their negligence claims "using a different label." (El Escorial Owners' Assn. v. DLC Plastering, Inc., supra, 154 Cal.App.4th at p. 1349.) That being so, the trial court properly sustained defendant's demurrer to plaintiffs' nuisance cause of action.
C. Leave to Amend the Pleading
"Whether to grant leave to amend a complaint is a matter within the discretion of the trial court." (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091 [32 Cal.Rptr.3d 483, 116 P.3d 1162].) "A trial court's order sustaining a demurrer without leave to amend is reviewable for abuse of discretion `even though no request to amend [the] pleading was made.' (Code Civ. Proc., § 472c, subd. (a).)" (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 667-668 [63 Cal.Rptr.3d 537].) It is reviewable "even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend."
Under the governing substantive law, plaintiffs cannot amend their complaint to state a cause of action for negligence or premises liability. Plaintiffs' public nuisance cause of action falls with the negligence claims. And plaintiffs have failed to demonstrate a reasonable possibility that the defects in the nuisance claim could be cured by amendment. For all of these reasons, we find no abuse of discretion in the trial court's decision to sustain the demurrer without leave to amend.
Treating the order sustaining the demurrer as a judgment of dismissal, we affirm.
Bamattre-Manoukian, Acting P. J., and Mihara, J., concurred.