B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al.

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 01/05/2024 Hearing on Demurrer in Department 54

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that pursuant to “Public Notice – Civil Division Expansion of Law and Motion Calendar” any oral arguments regarding this tentative ruling will be heard in Department 31, located at 720 9th Street, Sacramento, CA, the Hon. Steven M. Gevercer presiding, at 10:00 a.m. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

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23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 01/05/2024 Hearing on Demurrer in Department 54

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TENTATIVE RULING:

The demurrer of Defendant Spare-Time, Inc. (“Defendant”) to the Complaint of Plaintiff B.B., a minor by and through her guardian ad litem, Dana Brown (“Plaintiff”) is ruled upon as follows.

On July 17, 2023, Plaintiff filed her Complaint alleging the following two causes of action against Defendant and Does 1 through 50, inclusive: (1) negligence and (2) premises liability.

Defendant demurs to the second cause of action of premises liability on grounds that Plaintiff fails to state facts sufficient to state a cause of action and that the second cause of action is uncertain. (Demurrer, p. 2: 4-5.)

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.)

A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc., §452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v.

Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . we are not

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 01/05/2024 Hearing on Demurrer in Department 54

concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

2nd Cause of Action – Premises Liability

As stated above, Defendant demurs to the second cause of action for premises liability on grounds that Plaintiff fails to state facts sufficient to state a cause of action and that the second cause of action is uncertain. (Demurrer, p. 2: 4-5.)

i. Failure to state facts

Defendant argues that Plaintiff fails to state facts sufficient to state a cause of action of premises liability.

Defendant argues that Plaintiff fails to establish that the Defendant owed her a duty of care under a theory of premises liability because the Complaint fails to allege the requisite nexus between the alleged harm and the property. Defendant asserts that to establish the required nexus, the Complaint “must plead either (1) a defect of the property itself (no such defect is pleaded), (2) something foreseeably dangerous about the activity conducted on the property (tennis is not inherently dangerous with regards to the harm alleged); or (3) there was imminent or ongoing criminal activity occurring in the property owner’s presence.” (Mov.

P&A, p. 6: 20-24 [citing to Morris v. De La Torre (2005) 36 Cal. 4th 260, 271].) According to Defendant, the “vague and conclusory allegations” in the Complaint would not amount to “criminal conduct” that was “imminent or ongoing” in Defendant’s presence, and thus, Defendant owned Plaintiff no duty. (Id. at p. 7: 13-16.)

Defendant further argues that even if it owed Plaintiff a duty, Plaintiff fails to establish that the scope of that duty included a heightened duty to take preventative measures in the absence of facts establishing foreseeability. Defendant states that in the absence of some circumstance giving rise to an inference of foreseeability or prior incidents establishing foreseeability, generally premises liability would not attach. (Mov. P&A, p. 8: 24-26 [citing to Wallace v. Der- Ohanian (1962) 1999 Cal.App.2d 141, 147-148].)

According to Defendant, while the Complaint broadly claims that Defendant could reasonably have anticipated that child athletes could be targets for criminal acts, and that the coach-athlete setting provides an opportunity for criminals to prey on potential victims, the Complaint is devoid of any facts supporting that conclusion. (Id. at p. 9: 14-17.) Defendant maintains that the vague and conclusory nature of Plaintiff's Complaint does not provide the requisite factual basis with reasonable precision and sufficient

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 01/05/2024 Hearing on Demurrer in Department 54

particularity to allow Defendant to determine the nature, source, and extent of the premises liability cause of action.

Plaintiff in opposition states that the essential factual elements for premises liability are pleaded in the Complaint:

1) That Defendant owned/occupied/controlled the property. (Citing to Compl., ¶¶ 15, 5-6.);

2) That Defendant was negligent in the use or maintenance of the property. (Citing to Id. at ¶¶ 1-11, 26.);

3) That Plaintiff was harmed. (Citing to Id. at ¶¶ 27-28.);

4) That Defendant’s negligence was a substantial factor in causing Plaintiff’s harm. (Citing to Ibid.)

Further, Plaintiff argues that Defendant, the owner and operator of a youth tennis program, owed Plaintiff a duty of care to protect her from abuse by Defendant’s employee at Defendant’s facilities. Pointing to certain allegations in the Complaint, Plaintiff avers that the Complaint pleads sufficient facts to establish that Defendant had reasonable cause to anticipate sexual abuse by coaches as a potential problem, that the abuse Plaintiff suffered was foreseeable, and there was a nexus between Plaintiff’s injury and the Defendant’s business.

Premises liability is a form of negligence. “The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

A premises owner is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved. . . . The basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances.” (Ortega v.

Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The property owner's duty of reasonable care includes the use of “reasonable care to keep the premises in a reasonably safe condition and must give warning of latent or concealed perils.” (Lucas v. George T.R. Mural Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590.)

However, 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.) Yet, an “exception to th[is] general

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 01/05/2024 Hearing on Demurrer in Department 54

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 and their patrons. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.)

“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, 36 Cal.4th at p. 229 [citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674; 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, 36 Cal.4th at p. 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 p. 240 [emphasis in original]; Ann M., supra, 6 Cal.4th at p. 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.)

Liability may be found even if the injury incurred outside of the property – i.e., on an adjacent street. (Swanberg v. O’Mectin (1983) 157 Cal.App.3d 325, 330.)

Pertinent here, Plaintiff alleges the following:

In 2021 and 2022, Plaintiff was a member of Defendant’s Junior Tennis Academy, an “intensive tennis coaching program for children.” (Compl., ¶ 1.)

At all times relevant to this complaint, Defendant owned and operated Spare Time Sports Clubs including the properties Rio Del Oro Sports Club, Broadstone Sports Club, and Gold River Indoor Tennis Center. (Id. at ¶ 15.)

Defendant employed Kaspar Zemaitelis as a tennis coach in the Junior Tennis Academy. (Id. at ¶ 3.) Zemaitelis used his position to “groom” and sexually abuse Plaintiff, a minor child, over a period of about ten months from October 2021 to July 2022, beginning when Plaintiff was 14. (Ibid.) Defendant knew of or recklessly disregarded the abuse that Zemaitelis perpetrated and allowed it to continue by failing to act. (Id. at ¶ 6.) Directors and coaches throughout the program observed that something was wrong between

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 01/05/2024 Hearing on Demurrer in Department 54

Plaintiff and Zemaitelis. (Ibid.)

Bill Campbell, the director of the Rio Del Oro location of the Junior Tennis Academy, observed Zemaitelis making inappropriate physical contact with Plaintiff, but recklessly continued to employ Zemaitelis, and took no action to protect Plaintiff or inform Plaintiff’s parents. (Id. at ¶ 7.) Zemaitelis also abused Plaintiff when they traveled for tournaments. (Ibid.) Director Bill Campbell authorized Zemaitelis to travel to these tournaments with Plaintiff, even after observing the inappropriate physical contact.

Doug Atkinson, the director of the Broadstone location of the Junior Tennis Academy, remarked that he thought Zemaitelis was “dating” Plaintiff, but took no action to protect Plaintiff or inform her parents. (Id. at ¶ 8.)

At least one tennis coach, Jovana Jovic, assisted Zemaitelis in grooming Plaintiff by discussing inappropriate sexual topics, displaying inappropriate photos, and cuddling Plaintiff with Zemaitelis. (Id. at ¶ 9.)

Other coaches, including trainer Eric Weil and tennis coach Kiryl Harbatsiuk, observed Zemaitelis verbally abusing Plaintiff. (Id. at ¶ 10.) One tennis coach, Diamond Bulatoaite observed that it was strange that Zemaitelis was spending time with Plaintiff between morning and afternoon practice. (Ibid.)

Defendant owned and operated the Junior Tennis Academy for profit at their Rio Del Oro Sports Club, Broadstone Sports Club, and Gold River Indoor Tennis Center locations. (Id. at ¶ 25.) Plaintiff alleges that Defendant could have reasonably anticipated that child athletes could be targets for criminal acts, and that the coach-athlete setting provides an opportunity for criminals to prey on potential victims. (Ibid.) Defendant failed to exercise reasonable care to protect child athletes from criminal conduct on their property, and as a result, Zemaitelis was able to groom and abuse Plaintiff on Defendants’ property, which resulted in injuries and damages. (Id. at ¶¶ 26-28.)

Construing the Complaint liberally, and assuming the truth of the facts pleaded, as the Court must in the context of a demurrer, the Court finds Plaintiff’s allegations sufficient to state a cause of action for premises liability. The demurrer on this ground is OVERRULED.

ii. Uncertainty

Defendant also argues that Plaintiff’s allegations pertaining to the second cause of action are so ambiguous as to be uncertain. The Court determines that Plaintiff’s allegations are not so uncertain that Defendant cannot frame a response.

Demurrers for uncertainty are disfavored and are only granted where the complaint is so

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV004953: B.B. vs SPARE-TIME, INC., A CALIFORNIA CORPORATION, et al. 01/05/2024 Hearing on Demurrer in Department 54

muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.) Generally, a demurrer for uncertainty will be sustained “only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) The demurrer on the ground of uncertainty is OVERRULED.

Parenthetically, the Court notes that it disregards Defendant’s additional argument on grounds that the second cause of action is duplicative of the first cause of action for negligence. (See Mov. P&A, p. 5: 14-18.) Defendant appears to have only interspersed this argument in its memorandum of points and authorities. “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc., § 430.60 [emphasis added].) Where there are several grounds for demurrer, each ground must be stated in a separate paragraph. (Cal. Rules of Court, rule 3.1320(a).)

Disposition

Defendant’s demurrer to the Complaint is OVERRULED as set forth herein.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., §1019.5; Cal. Rules of Court, rule 3.1312.)