ALLISON ARSOVE v. MARK HAMILTON, ET AL

Grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or from matters properly subject to judicial notice. (See Code. Civ. Proc., § 438, subd. (d).) As on a demurrer, the pleading includes matters shown in exhibits attached to it or incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Alameda County Waste Management Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1173-74 (“ACWMA”) [rules governing demurrers apply to motions for judgment on the pleadings except to the extent provided by statute].) A motion for judgment on the pleadings may be granted with or without leave to amend. (Code Civ. Proc., § 438, subd. (h).)

DISCUSSION

First Cause of Action: Negligence

The elements of a cause of action for negligence are “a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Any claim for negligence addresses a breach of one of the “two general types of ‘legal duty’”: “the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated” and the duty “to act affirmatively to prevent harm.” (Ingham v. Luxor Cab. Co. (2001) 93 Cal.App.4th 1045, 1050; see also Brown v.

USA Taekwondo (2021) 11 Cal.5th 204, 213-215.) The nature of the duty applicable to a given negligence claim depends on the nature of the defendant’s alleged conduct. If the defendant’s conduct, as a whole, is alleged to have created the risk of harm that befell the plaintiff, the resulting negligence claim is subject to the “default rule” of duty: “ ‘that each person has a duty to ‘to exercise, in his or her activities, reasonable care for the safety of others.’ ” (Brown, supra, 11 Cal.5th 204, 214 [quoting Cabral v.

Ralphs Grocery Co. (2011) 51 Cal.4th 764, 768]; id. at p. 215, fn. 6; Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 895, 908-909; see also Civ. Code, § 1714, subd. (a).) By contrast, a plaintiff may allege that a defendant failed to take affirmative action to protect her against a risk the defendant neither created nor exacerbated. (See Brown, supra, 11 Cal.5th 204, 214; Minch, supra, 140 Cal.App.4th 895, 908.) In that case, the default rule is one of no duty: A person who did not create or contribute to a peril owes no duty to act affirmatively to protect another person from that peril. (Brown, supra, 11 Cal.5th 204, 214.)

The conduct at issue for purposes of Plaintiff’s negligence claim consists in part of Movants’ allegedly “caus[ing]” and “allow[ing]” Plaintiff “to collapse in her shower[.]” (Complaint, p. 4.) These are conclusory allegations that are not accepted as true against a demurrer, and thus against a motion for judgment on the pleadings. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 976; ACWMA, supra, 67 Cal.App.5th 1162, 1173-74.). To mount a tort claim on the basis that Movants were responsible for her fall in the shower, as

opposed to for what happened to her after she fell, Plaintiff will need to plead facts that shed light on her theory of how Movants are responsible for her falling the shower.

Once the improper allegations that Movants brought about the fall are removed, Plaintiff is alleging that Movants were negligent only in that they discovered her clearly needing help and failed to come to her aid. (Complaint, p. 4.) The default rule under such circumstances is that the defendant did not owe a duty to the plaintiff. (Brown, supra, 11 Cal.5th 204, 214.)

The Court acknowledges allegations that Movants’ “abandonment added to the risk of harm” and such “additional risk was a substantial factor in causing harm to Plaintiff[.]” (Complaint, p. 4.) These are a clear attempt to bring Plaintiff’s negligence claim within the general rule of duty. (Brown, supra, 11 Cal.5th 204, 214 [general duty of care applies when defendant “ ‘ “created a risk” ’ of harm to the plaintiff, including when ‘ “the defendant is responsible for making the plaintiff’s position worse[]” ’ ”] [quoting Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716].) The Court reads these allegations to mean that Movants’ failure to help Plaintiff caused Plaintiff’s injuries to be worse than they otherwise would have been. 1

Even if Movants’ conduct unquestionably contributed to the severity of Plaintiff’s injuries, Movants cannot be held liable for negligence for that additional injury absent a duty owed to Plaintiff. (See Kesner, supra, 1 Cal.5th 1132, 1158.) In every case where a party declines to affirmatively intervene to protect someone else from a risk of harm the party did not create, the party can be said to have worsened the victim’s injuries, because the party’s failure to intervene left the victim vulnerable to harm.

If this were enough to bring a case within the default rule of duty, the practical result would be recognition of a legal duty to affirmatively intervene to protect others from harm. This is plainly not the law. (See Brown, supra, 11 Cal.5th 204, 214].) To bring Movants within the default rule of duty on the theory that they contributed to the risk of harm that befell Plaintiff, Plaintiff would need to truthfully allege facts to support the idea that Movants’ conduct contributed to the risk that she would fall in her shower.

Alternatively, she could allege that upon discovering Plaintiff, Movants took some sort of affirmative action toward her that placed her at a risk of harm beyond what she was already facing as a result of the fall. The complaint does not allege the former in a non-conclusory fashion, and allegations that Movants’ failure to affirmatively intervene on Plaintiff’s behalf worsened her injuries cannot substitute for the latter.

There is an exception to the general rule that there is no duty to protect another from a risk of harm one did not create: “Where there is a special relationship between the parties that gives the victim a right to expect protection from the defendant, the law imposes an affirmative duty to protect.” (Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal.App.5th 843, 852; accord Minch, supra, 140 Cal.App.4th 895, 909.) Plaintiff suggests that Movants owed her

1 It is a pleading’s language, not a plaintiff’s characterization of her claims in briefing, that determines whether a pleading states a cause of action. (See Donabedian, supra, 116 Cal.App.4th 968, 994 [when a court assesses whether a pleading states a cause of action, the scope of its review is confined to the pleading itself and any matters subject to judicial notice].) With that said, Plaintiff’s brief confirms that the Court’s interpretation of these allegations (which it arrived at before reading her brief) is consistent with Plaintiff’s intent when drafting the complaint. (See Opposition, p. 9 [allegations that the defendants “added to the risk of harm” and that such “additional risk was a substantial factor in causing harm to Plaintiff” refer to “whether the hours that elapsed between Defendants’ discovery of Plaintiff and the eventual arrival of emergency responders caused incremental injury”].) 3

a duty because there is a legally recognized special relationship between landlords and their tenants. The law has recognized the existence of a special relationship between landlords and tenants sufficient to imbue the landlord with certain affirmative duties to protect, including, for example, the duty “to take reasonable measures to secure areas under the landlord’s control against foreseeable criminal acts of third parties.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) Plaintiff acknowledges that she is not alleging that she was the victim of a foreseeable criminal act committed by a third party while at her apartment.

She does not recognize that this makes Castaneda of no use to her. Her theory is apparently that she need only establish that the law has recognized a special relationship between landlords and tenants, without reference to the nature of the duties the law says flow from that relationship. This is not how duty analysis works. When a court determines whether a duty exists in a particular case, it does so by reference to the behavior the plaintiff argues the defendant had the duty to perform. (See Vasquez v.

Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 280; see also Castaneda, supra, 41 Cal.4th 1205, 1214 [discussing this portion of Vasquez with approval].) Plaintiff’s negligence claim does not allege (at least, not in the required non-conclusory fashion) that she fell in the shower due to some feature of her unit, or that any defendant played any role in causing her to fall. The competent allegations associated with this cause of action are that she fell, and Movants thereafter neglected to assist her.

Plaintiff has not offered, and the Court has not found, any authority for the idea that the special relationship between a landlord and a tenant confers upon the landlord a duty to protect the tenant against risks of harm having nothing to do with the landlord’s ownership of the premises. (See Rosenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1091-1092 [circumstances supporting imposing a duty on a landlord are generally those “where there is a close, or functional, relationship between the landlord’s conduct and the harm suffered”].)

The motion for judgment on the pleadings is GRANTED with leave to amend as to this cause of action.

Second Cause of Action: Premises Liability

Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) As a result, the elements of the two claims are the same. (Kesner, supra, 1 Cal.5th 1132, 1158.) However, the duty at issue in a premises liability claim is context-specific. The cause of action involves an alleged breach of the duty of a party who controls property to manage that property in a manner that avoids exposing other people to an unreasonable risk of harm. (Ingham, supra, 93 Cal.App.4th 1045, 1050; Brooks, supra, 215 Cal.App.3d 1611, 1619; see also Hernandez v. Jensen (2021) 61 Cal.App.5th 1056, 1070 [distinguishing negligence theory from premises liability theory].)

Plaintiff alleges that the defendants “negligently and carelessly owned, possessed, occupied, operated, managed, controlled, maintained and inspected” her unit and that they “willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity.” (Complaint, p. 5.) These conclusory allegations are not accepted as true (Donabedian, supra, 116 Cal.App.4th 968, 976), and without them, there is no substance to Plaintiff’s premises

liability claim. Plaintiff fails to allege, in nonconclusory fashion, that any defendant did anything relating to the condition of her unit that exposed her to an unreasonable risk of harm.

The motion is GRANTED with leave to amend as to this cause of action.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for May, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1 Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov

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