English v. Noel Jones Ministries CA2/3 ( 2023 )

Filed 3/27/23 English v. Noel Jones Ministries CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TONTANISHA ENGLISH et al., B312959
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 20STCV06808)
v.
NOEL JONES MINISTRIES, INC., et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Cary Nishimoto, Judge. Affirmed.
Gansen Law Group and Christopher J. Gansen, for
Plaintiffs and Appellants.
Fozi Dwork & Modafferi, Golnar J. Fozi and Michael V.
Storti, for Defendants and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Patricia Harrison’s ex-boyfriend, Kevin Dickson, fatally
stabbed Harrison in the parking lot of City of Refuge Church
(Church). Harrison’s heirs sued City of Refuge Ministries, Inc.
and Noel Jones Ministries, Inc. (hereafter collectively Ministries),
which operated and managed the Church, Noel Jones, the bishop
and chief executive officer of Ministries, and Bryant Smith, the
head of Church security (hereafter collectively Ministry
defendants), for wrongful death, negligence, and related causes of
action.1 The trial court sustained the Ministry defendants’
demurrers to the first amended complaint without leave to
amend and entered judgment in their favor.
Harrison’s heirs contend the trial court mistakenly
concluded that the Ministry defendants did not owe a legal duty
to Harrison to maintain security guards adequate to have
prevented her attack or to exclude Dickson from the Church.
Because we agree with the trial court, and further conclude that
Harrison’s heirs have not demonstrated how the complaint can be
amended to establish such duties, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background
“This case comes to us at the demurrer stage, so for present
purposes we assume the truth of the allegations in the
complaint.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204,
209–210 (Brown).) “ ‘[W]e treat as true all material facts
properly pleaded, but not contentions, deductions or conclusions
1 Dickson was also named as a defendant in the lawsuit. He
is not a party to this appeal.
2
of fact or law.’ ” (Hanouchian v. Steele (2020) 51 Cal.App.5th 99,
103 (Hanouchian).)
The Ministries owned and operated the Church and the
premises where the Church was located, including its parking lot.
Defendant Jones was the bishop and chief executive officer of the
Ministries. Defendant Smith was the head of Church security.
The Church employed a 15-person security staff.
Both Harrison and Dickson were members of the Church at
the time of the incident. Harrison had been an active member of
the Church for more than five years before her death. Harrison
attended weekly services, which drew more than 4,500 members,
she attended bible study classes, which drew about 300 members,
and she volunteered at Church-sponsored community events and
activities. At the time of the fatal stabbing, Dickson was
Harrison’s ex-boyfriend.
The first amended complaint alleges that their relationship
ended “badly, with violence on Dickson’s part and [Harrison’s]
seeking a restraining order against him.” Both Smith and Jones
“had intimate knowledge of [the relationship between Dickson
and Harrison] and of Dickson’s abusive, harassing, and
threatening conduct towards [Harrison] prior to the incident.”
For example, two months prior to the incident, “Dickson admitted
to Smith that [Harrison] had accused him of ‘choking her out’ and
that the authorities had to be called.” Dickson further informed
Smith that as a result of that incident “there was an active
restraining order against Dickson in favor of [Harrison].” “Smith
casually told Dickson to ‘leave her alone’ and that there were
‘more fish in the sea.’ ”
Jones and Smith were also informed about one occasion
when Dickson harassed Harrison while she was volunteering at
3
the Church. As a result of that incident, “a report was made to
the Ministries, Jones and Smith explicitly instructing” that “they
‘had to look out for the two of them having problems.’ ”
According to the first amended complaint, “[n]one of the
Defendants took any additional steps to assist [Harrison] with
her personal safety via-à-vis the Church, nor did they ask or
inform Dickson that he was no longer invited at the Church, or
take any steps to keep Dickson and [Harrison] from interacting
on their property.” The first amended complaint further alleges
that the “Ministries, Jones and Smith had knowledge of the high
foreseeability that violent crime specific to Dickson could and
would occur on the premises, thus establishing a duty to provide
increased security to members of their congregation such as
[Harrison] and prevent Dickson from accessing their premises at
all.” Such measures could have included providing “additional or
personal security.”
On April 18, 2018, at approximately 7:00 p.m., Dickson
arrived at the Church parking lot and used his car to block
Harrison’s car from leaving. After confronting Harrison for
several minutes in the parking lot, Dickson stabbed Harrison
repeatedly.
Harrison’s granddaughter, who was in Harrison’s car and
witnessed the attack, ran inside the Church and told a member of
the Church’s security staff. The security guard then notified
Smith, who was inside the Church’s sanctuary awaiting the
arrival of Jones for a bible-study session. Upon being notified of
the attack, Smith exited the back door of the Church into the
parking lot and observed Dickson drive away. When Smith got to
Harrison, she was bleeding from multiple stab wounds. Church
members had already called 911. Harrison died from the attack.
4
II. Trial court proceedings
Harrison’s heirs Tontanisha English, Ashley Harrison,
Eleseia Viverette, and Lailah Hardie (hereafter collectively
English) filed a first amended complaint against the Ministry
defendants and Dickson, alleging claims for wrongful death,
negligence, negligent hiring, supervision, and retention,
intentional infliction of emotional distress, and negligent
infliction of emotional distress.
English’s wrongful death claim alleged that the Ministry
defendants negligently operated and supervised the Church
parking lot on the day of Harrison’s murder “by failing to take
action in response to the numerous warnings that Dickson
presented a threat” to Harrison, “such as banning him from
Church premises.”
English’s negligence claim similarly alleged that the
Ministry defendants “had a duty to use reasonable care to secure,
safeguard and protect” Church members, including Harrison, and
breached that duty “by failing to take reasonable steps to ensure
the safety” of Harrison “despite being on notice that Dickson had
been violent towards her” in the past. The first amended
complaint alleged that such “reasonable steps” included banning
Dickson from the premises or posting a “security detail in the
Church’s parking lot” to ensure parishioners could safely enter
and exit the Church.
The first amended complaint also sought punitive damages.
The Ministry defendants filed demurrers to the first
amended complaint and motions to strike the punitive damages
allegations.
In their demurrer to the wrongful death and negligence
claims, the Ministry defendants argued that they did not owe
5
Harrison a legal duty to prevent Dickson’s violent attack. They
contended that the only level of security that could have
prevented the attack “would have been something approaching
personal security for every parishioner attending a Church
service or event,” and that the “level of security necessary to
protect up to 4,500 parishioners would be immensely burdensome
for” them. They further argued that banning Dickson from the
Church would have been ineffective given there already was a
restraining order preventing him from making contact with
Harrison. Last, they highlighted that the “level of foreseeability
of intentional, targeted, violent assaults on the Church premises
is practically nil.”
In their motions to strike, the Ministry defendants
contended that the first amended complaint’s request for punitive
damages against the Ministries was barred by Code of Civil
Procedure section 425.14. That section bars a claim for punitive
damages “against a religious corporation . . . unless the court
enters an order allowing an amended pleading that includes a
claim for punitive damages” to be filed. (Code Civ. Proc.,
§ 425.14.) They further argued that the first amended complaint
failed to allege facts sufficient to show “oppression, fraud or
malice” on the part of the Ministry defendants.2
In opposition to the demurrers, English contended that the
first amended complaint alleged that the Ministry defendants
knew about Dickson’s “violent propensities, and that his conduct
2 Only the motion to strike of Noel Jones Ministries, Inc. is
included in the clerk’s transcript. The Ministry defendants
inform us that the other motions to strike are identical in all
material respects.
6
in stabbing her to death violently was foreseeable” to them.
English also reiterated the allegation in the first amended
complaint that the Church’s security staff “did nothing to try to
‘keep them apart,’ nor did they take any reasonable actions to
prevent Dickson from harming [Harrison] at the Church,
including additional or personal security.” English also
requested leave to amend in the event the court sustained the
demurrers, but did not identify the specific allegations she could
offer in an amended complaint.
In opposition to the motions to strike, English conceded the
applicability of Code of Civil Procedure section 425.14. Even so,
she argued the allegations in the first amended complaint were
sufficient to state a punitive damages claim. In particular, she
argued that the Ministry defendants’ failure to keep Dickson off
the Church premises or to provide Harrison with reasonable
security demonstrated “malice” within the meaning of Civil Code
section 3294.
The trial court sustained the demurrers without leave to
amend. Regarding the wrongful death and negligence claims, it
concluded that defendants did not owe a legal duty to Harrison to
provide additional or personal security or to ban Dickson from
the premises. The court determined that the allegations in the
first amended complaint failed to show “that there was a
heightened foreseeability” that “Dickson was going to commit a
brutal criminal act by murdering [Harrison]” in the Church
parking lot. The court further found that “the proposed security
measures are vague (‘additional or personal security’),
burdensome (security guard in parking lot), and lack efficacy
against a person who violates a restraining order.” The court
likewise concluded that English failed to allege facts sufficient to
7
support her other causes of action against the Ministry
defendants.
The trial court also granted the Ministry defendants’
motions to strike the punitive damages claims, concluding that
the first amended complaint failed to allege anything rising “to
the level of oppression, fraud, or malice.” The court also cited the
absence of any order pursuant to Code of Civil Procedure section
425.14 authorizing English to pursue punitive damages claims
against the Ministries.
The court thereafter entered a judgment of dismissal in
favor of the Ministry defendants. English timely appealed.
DISCUSSION
English contends the trial court erred by concluding that
the Ministry defendants did not owe Harrison a legal duty to
protect her from Dickson’s violent attack. In particular, English
argues the Ministry defendants were liable for Harrison’s murder
“as a result of inadequate security at the Church,” and their
failure “to disinvite a congregant known to have committed”
violence against Harrison in the past. According to English, the
allegations in the first amended complaint demonstrated that the
Ministry defendants knew about Dickson’s violent propensities
and that his attack of Harrison at the Church was foreseeable.
She emphasizes that two months prior to Harrison’s murder,
Dickson told Smith that Harrison had accused Dickson of choking
her; that the Ministry defendants knew Harrison had a
restraining order against Dickson; and that the Ministry
defendants knew Dickson had harassed Harrison at the Church
and had prepared a report indicating they “ ‘had to look out for
the two of them having problems.’ ”
8
On appeal, English also offers the following additional
allegations which she contends cure any defects with the first
amended complaint. The Ministry defendants knew that
“Dickson was not actually attending any of the functions or
services at the Church around the time he killed Harrison, but
that rather he was only showing up at the Church at certain
times because he knew he would be able to see Harrison and
would act violently or erratically at best, i.e., the Church knew in
advance Dickson was stalking Harrison and did nothing.” For
example, the Ministry defendants knew that Dickson would
“often visit the youth services department of the Church because
he knew Harrison volunteered with children” at the Church. The
Ministry defendants also knew that Dickson had “stolen
Harrison’s phone so he could look through her private photos and
texts at the Church property—a guard . . . had to force Dickson to
give it back.”
Also, prior to Harrison’s murder the Ministry defendants
had “arranged for their security staff to keep families separated
while at the Church, in cases of custody disputes, harassment, or
divorce.”
On the day of Harrison’s murder, a Church security guard
sent Harrison a text message telling her to park her car “in the
location where she was killed because, he said, that area of the
parking lot would be monitored” by security guards. After
Harrison’s murder, Smith and/or Jones told a Church security
guard that they had discussed “disinviting Dickson from the
premises prior to the attack because they knew he was a danger
to Harrison.”
9
I. Demurrer
A. Standard of review
“We review a judgment of dismissal after an order
sustaining a demurrer de novo, exercising our independent
judgment about whether the complaint states a cause of action as
a matter of law. [Citation.] We ‘assume the truth of all facts
properly pleaded by the plaintiffs, as well as those that are
judicially noticeable.’ [Citation.] ‘We may affirm on any basis
stated in the demurrer, regardless of the ground on which the
trial court based its ruling.’ ” (Hanouchian, supra, 51
Cal.App.5th at p. 106.)
“It is an abuse of discretion to sustain a demurrer without
leave to amend if there is a reasonable probability that the defect
can be cured by amendment. [Citation.] The burden is on the
plaintiff to demonstrate how the complaint can be amended to
state a valid cause of action. [Citation.] The plaintiff can make
that showing for the first time on appeal.” (Chapman v. Skype,
Inc. (2013) 220 Cal.App.4th 217, 226.)
B. Applicable legal principles
“To establish a cause of action for negligence, the plaintiff
must show that the ‘defendant had a duty to use due care, that he
breached that duty, and that the breach was the proximate or
legal cause of the resulting injury.’ [Citation.] Recovery for
negligence depends as a threshold matter on the existence of a
legal duty of care.”3 (Brown, supra, 11 Cal.5th at p. 213.) “The
3 English’s appeal addresses only whether the Ministry
defendants owed Harrison a legal duty to prevent Dickson’s
assault, contending that her other causes of action “flow from
10
existence of a duty is a question of law for the court.” (Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann
M.), disapproved on other grounds in Reid v. Google (2010) 50
Cal.4th 512, 527, fn. 5.)
“In general, each person has a duty to act with reasonable
care under the circumstances. [Citations.] However, ‘one owes
no duty to control the conduct of another, nor to warn those
endangered by such conduct.’ [Citation.] ‘A person who has not
created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another unless there is
some relationship between them which gives rise to a duty to
act.’ ” (Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 619 (Regents); Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 235 (Delgado) [“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.”].)
Our Supreme Court has instructed us to apply a two-step
inquiry to determine “whether a defendant has a legal duty to
take action to protect the plaintiff from injuries caused by a third
party.” (Brown, supra, 11 Cal.5th at p. 209.) “First, the court
must determine whether there exists a special relationship
between the parties or some other set of circumstances giving rise
to an affirmative duty to protect. Second, if so, the court must
consult the factors described in Rowland [v. Christian (1968) 69
[her] negligence claim.” Thus, we do not separately analyze
whether any other cause of action in English’s first amended
complaint states a claim for relief.
11
Cal.2d 108] to determine whether relevant policy considerations
counsel limiting that duty.”4 (Ibid.)
The two-step inquiry is based on the premise that “even
when two parties may be in a special relationship, the
unforeseeability of the kind of harm suffered by the plaintiff or
other policy factors may counsel against establishing an
affirmative duty for one party to protect another.” (Brown, supra,
11 Cal.5th at p. 219.) “A court might conclude that duty should
not be imposed because, for example, the type of harm the
plaintiff suffered was unforeseeable, or because there was no
moral blameworthiness associated with defendant’s conduct,
notwithstanding the defendant’s special relationship to the
plaintiff. Put differently, even when a special relationship gives
rise to an affirmative duty to protect, a court must still consider
whether the policy considerations set out in Rowland warrant a
departure from that duty in the relevant category of cases.” (Id.
at p. 222.)
The Ministry defendants do not dispute that the first
amended complaint adequately alleges the existence of a special
relationship between the Ministries and Harrison. Indeed,
“ ‘[t]he relationship between a possessor of land and an invitee is
a special relationship giving rise to a duty of care.’ [Citations.]
‘The duty of care includes a duty to take reasonable steps to
protect persons on the property from physical harm caused by the
foreseeable conduct of third parties,’ including foreseeable
4 Rowland v. Christian, supra, 69 Cal.2d 108, was partially
superseded by statute on a different issue as stated in Calvillo-
Silva v. Home Grocery (1998) 19 Cal.4th 714, 722, disapproved on
other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 853.
12
criminal acts.” (Hanouchian, supra, 51 Cal.App.5th at p. 107; see
Delgado, supra, 36 Cal.4th at p. 235 [“Courts have found such a
special relationship in cases involving the relationship between
business proprietors such as shopping centers, restaurants, and
bars, and their tenants, patrons, or invitees.”]; Ann M., supra, 6
Cal.4th at p. 674 [landlord owes duty to tenants and patrons “to
take 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.”].)
As do the parties, we therefore focus our analysis on the
second step of the two-step inquiry established by Brown. At that
step, we determine a duty’s existence and scope by applying the
Rowland factors: “ ‘[T]he foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and
the injury suffered, the moral blame attached to the defendant’s
conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for
breach, and the availability, cost, and prevalence of insurance for
the risk involved.’ ” (Ann M., supra, 6 Cal.4th at p. 675, fn. 5,
quoting Rowland v. Christian, supra, 69 Cal.2d at p. 113; see
Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 (Castaneda).)
“Foreseeability and the extent of the burden to the defendant are
ordinarily the crucial considerations, but in a given case one or
more of the other Rowland factors may be determinative of the
duty analysis.” (Castaneda, at p. 1213.)
“With respect to the two most crucial considerations, our
Supreme Court has instructed that ‘ “the scope of the duty is
determined in part by balancing the foreseeability of the harm
13
against the burden of the duty to be imposed. [Citation.] ‘ “[I]n
cases where the burden of preventing future harm is great, a high
degree of foreseeability may be required. [Citation.] On the
other hand, in cases where there are strong policy reasons for
preventing the harm, or the harm can be prevented by simple
means, a lesser degree of foreseeability may be required.” ’ ” ’ ”
(Hanouchian, supra, 51 Cal.App.5th at p. 108.) “The high court
has described this analysis as a ‘sliding-scale balancing
formula.’ ” (Ibid.)
The duty analysis requires us “to identify the specific action
or actions the plaintiff claims the defendants had a duty to
undertake. ‘Only after the scope of the duty under consideration
is defined may a court meaningfully undertake the balancing
analysis of the risks and burdens present in a given case to
determine whether the specific obligations should or should not
be imposed on the landlord.’ ” (Castaneda, supra, 41 Cal.4th at
p. 1214.) Thus, “ ‘[f]irst, the court must determine the specific
measures the plaintiff asserts the defendant should have taken to
prevent the harm. This frames the issue for the court’s
determination by defining the scope of the duty under
consideration. Second, the court must analyze how financially
and socially burdensome these proposed measures would be to a
landlord, which measures could range from minimally
burdensome to significantly burdensome under the facts of the
case. Third, the court must identify the nature of the third party
conduct that the plaintiff claims could have been prevented had
the landlord taken the proposed measures, and assess how
foreseeable (on a continuum from a mere possibility to a
reasonable probability) it was that this conduct would occur.
Once the burden and foreseeability have been independently
14
assessed, they can be compared in determining the scope of the
duty the court imposes on a given defendant.’ ” (Ibid.)
C. The trial court properly sustained the
demurrers of the Ministry defendants
English’s first amended complaint alleged that the Ministry
defendants had a duty to “provide increased security,” to provide
“additional or personal security,” and to post a “security detail in
the Church’s parking lot to ensure that parishioners like
[Harrison] were able to enter their house of worship free of
harassment and violence.” Her first amended complaint further
alleged that the Ministry defendants had a duty to “ban[]
[Dickson] from [the] Church premises.” We examine each
proposed duty in turn, and conclude that the Ministry defendants
were not required to undertake these duties.5
In doing so, we have considered both the allegations in the
first amended complaint and those English raises on appeal. We
therefore do not separately analyze whether English should be
granted leave to amend her first amended complaint, as we
conclude that the new allegations she raises on appeal are
insufficient to cure the deficiencies in her first amended
complaint.
5 Because we affirm the trial court’s decision sustaining the
Ministry defendants’ demurrers on the merits, we need not
address their argument that judgment should be affirmed due to
English’s purported failure to analyze how the cases she cites
apply to her arguments.
15
1. Duty to provide additional security
guards
Our analysis of English’s claim that the Ministry
defendants had a duty to provide additional security guards,
including posting security guards in the Church parking lot, is
guided by California Supreme Court cases examining a landlord’s
duty to provide security guards to protect against third party
violence. As explained below, these cases have concluded that
because the duty to provide security guards imposes a significant
burden, a heightened degree of foreseeability of third party
criminal conduct is necessary to impose such a duty.
In Ann M., the plaintiff was an employee of a photo
business located in a shopping center who was sexually assaulted
at work by a man armed with a knife. (Ann M., supra, 6 Cal.4th
at p. 671.) The plaintiff sued the shopping center for negligence,
contending that the attack was a foreseeable result of the
shopping center’s failure to provide security patrols to deter the
presence of transients in common areas of the shopping center.
(Id. at p. 673.) The trial court granted summary judgment in
favor of the shopping center on the basis that it owed no such
duty to the plaintiff. (Ibid.)
On appeal, our Supreme Court concluded that “[w]hile
there may be circumstances where the hiring of security guards
will be required to satisfy a landowner’s duty of care, such action
will rarely, if ever, be found to be a ‘minimal burden.’ The
monetary costs of security guards is not insignificant. Moreover,
the obligation to provide patrols adequate to deter criminal
conduct is not well defined. ‘No one really knows why people
commit crime, hence no one really knows what is “adequate”
deterrence in any given situation.’ ” (Ann M., supra, 6 Cal.4th at
16
p. 679.). Ann M. thus held that “a high degree of foreseeability is
required in order to find that the scope of a landlord’s duty of care
includes the hiring of security guards,” and stressed further that
“the requisite degree of foreseeability rarely, if ever, can be
proven in the absence of prior similar incidents of violent crime
on the landowner’s premises.” (Ibid.)
The California Supreme Court examined a similar issue in
Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1191 (Sharon
P.), disapproved on other grounds in Aguilar v. Atlantic Richfield
Co., supra, 25 Cal.4th at page 853, footnote 19, and Reid v.
Google, Inc., supra, 50 Cal.4th at page 527, footnote 5. There, the
plaintiff was sexually assaulted in an underground parking
garage below her office building. (Id. at p. 1185.) She sued the
garage owner and the garage parking service alleging that their
“failure to provide adequate security for users of the parking
garage resulted in” her attack. (Ibid.)
In affirming summary judgment in favor of the defendants,
the California Supreme Court emphasized its conclusion in Ann
M. that “in light of the vagueness of the obligation to provide
patrols adequate to deter crime and the significant monetary and
social costs that are implicated in imposing such an obligation, a
‘high degree of foreseeability’ is required in order to find that the
scope of a landowner’s duty of care includes the hiring of security
guards to protect against violent crime by third parties.” (Sharon
P., supra, 21 Cal.4th at p. 1190.) Applying that analysis, our
Supreme Court concluded that the plaintiff failed to provide
evidence of prior crimes in the area that were sufficiently like the
plaintiff’s assault to “establish a high degree of foreseeability that
would justify the imposition” of a duty by defendants to “provide
security guards in their garage.” (Id. at p. 1191.) It likewise
17
questioned whether other measures suggested by the plaintiff,
including periodic walk-throughs of the garage by security
personnel, were less burdensome, and applied the same
heightened foreseeability test: “[A]bsent any prior similar
incidents or other indications of a reasonably foreseeable risk of
violent criminal assaults in that location, we cannot conclude
defendants were required to secure the area against such crime.”
(Id. at pp. 1195–1199.)
Delgado reaffirmed this approach to examining whether to
impose a duty to provide security guards. There, the plaintiff, a
bar patron who was attacked in the parking lot of the bar by a
group of fellow patrons, sued the bar for negligence. (Delgado,
supra, 36 Cal.4th at pp. 230–231.) The bar employed two
security guards, one posted inside the bar and the other outside
in the parking lot. (Id. at p. 230.) The plaintiff and his wife
became uneasy after several bar patrons began staring at them,
and before leaving the bar the plaintiff’s wife informed the
security guard that “ ‘there was going to be a fight.’ ” (Id. at
p. 231.) The security guard inside the bar did not escort them to
their car, and the security guard normally posted outside was no
longer present when the plaintiff was assaulted in the parking
lot. (Ibid.)
On appeal from a verdict in favor of the plaintiff, the bar
contended that in the absence of any evidence of prior similar
criminal assaults on the premises or in the vicinity, it had no
duty to provide a security guard to protect the plaintiff from the
assault. (Delgado, supra, 36 Cal.4th at p. 232.) On that point,
the California Supreme Court agreed. After discussing Ann M.
and Sharon P., it reaffirmed that “only when ‘heightened’
foreseeability of third party criminal activity on the premises
18
exists—shown by prior similar incidents or other indications of a
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, italics omitted.)
Concluding the plaintiff produced no such evidence, Delgado held
that the bar did not have “an obligation to provide any guard, or
additional guards, to protect against third party assaults.” (Id. at
245.)
English’s first amended complaint variously describes the
duty she seeks to impose on the Ministry defendants as providing
“increased security to members of their congregation,” “taking
additional precautions to provide for [Harrison’s] security while
she was on Church premises,” “posting [a] security detail in the
Church’s parking lot to ensure that parishioners like [Harrison]
were able to enter their house of worship free of harassment and
violence,” and providing “personal security.” Regardless of how
English specifically characterizes this duty, it seems clear it
centers around providing security guards to protect parishioners
like Harrison. We therefore find that the duty English seeks to
impose here is no less burdensome or vague than the duty at
issue in Ann M., Sharon P., and Delgado.6 (See Delgado, supra,6 English’s opening brief acknowledges that requiring a
landowner to provide security guards potentially imposes a
significant burden. We do not believe that duty is any less
burdensome here even if we account for the allegation in the first
amended complaint that the Church had a 15-person security
staff and English’s claim on appeal that the Ministry defendants
had previously “arranged for their security staff to keep families
separated while at the Church, in cases of custody disputes,
19
36 Cal.4th at pp. 238–240; Sharon P., supra, 21 Cal.4th at
p. 1190 [noting “the vagueness of the obligation to provide patrols
adequate to deter crime and the significant monetary and social
costs” implicated in imposing such an obligation]; Ann M., supra,6 Cal.4th at p. 679 [observing that “the hiring of security guards”
“will rarely, if ever, be found to be a ‘minimal burden’ ” and that
“the obligation to provide patrols adequate to deter criminal
conduct is not well defined”]; see also Melton v. Boustred (2010)
183 Cal.App.4th 521, 539 [“The California Supreme Court has
repeatedly found ‘the burden of hiring security guards’ to be
‘extremely high.’ ”].)
English’s failure to define precisely what sort of additional
security guards would have been adequate to deter the type of
violent attack suffered by Harrison is emblematic of the problems
with imposing such a legal duty in the first place. As California
cases have repeatedly recognized in evaluating a landowner’s
duty to prevent criminal acts, identifying adequate measures to
protect against criminal conduct is difficult at best. (See Wiener
v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138,
harassment, or divorce.” A similar situation was presented in
Delgado. At the time the plaintiff was attacked in the bar
parking lot, the bar employed security staff and had instructed
security to “patrol the parking lot outside the bar to ensure that
persons did not congregate or consume intoxicating beverages
there.” (Delgado, supra, 36 Cal.4th at p. 230.) The California
Supreme Court continued to treat the duty to hire security
guards as a “burdensome” one and did not indicate that the
burden was any less given the fact that the bar already employed
security. (See id. at pp. 241, 244–245.) We therefore treat the
duty to provide security guards as burdensome, even accounting
for the Church’s existing security staff.
20
1150 (Wiener) [“[I]f a criminal decides on a particular goal or
victim, it is extremely difficult to remove his every means for
achieving that goal.”]; Vasquez v. Residential Investments, Inc.
(2004) 118 Cal.App.4th 269, 283 [“ ‘[H]ow can one know what
measures will protect against the thug, the narcotic addict, the
degenerate, the psychopath and the psychotic?’ ”]; Pamela W. v.
Millsom (1994) 25 Cal.App.4th 950, 959 [“On the facts of this
case, involving what appeared to be an attack by someone who
had stalked the victim, it is wholly unclear what level of security
short of armed guards could have been fully relied upon to
prevent the crime.”]; 7735 Hollywood Blvd. Venture v. Superior
Court (1981) 116 Cal.App.3d 901, 905 [“No one really knows why
people commit crime, hence no one really knows what is
‘adequate’ deterrence in any given situation.”].)
Because the duty to maintain security guards adequate to
have prevented Harrison’s attack imposes a significant burden on
the Ministry defendants and is vague, English must point to
allegations in the first amended complaint that sufficiently allege
a high degree of foreseeability of third party criminal conduct at
the Church premises. (See Ann M., supra, 6 Cal.4th at p. 679.)
However, the first amended complaint does not allege any prior
similar incidents at the Church or its parking lot, the key
indicator of heightened foreseeability required to establish a duty
to provide security guards. (See Delgado, supra, 36 Cal.4th at
p. 240; Sharon P., supra, 21 Cal.4th at p. 1191; Ann M., at p. 679
[“requisite degree of foreseeability rarely, if ever, can be proven in
the absence of prior similar incidents of violent crime on the
landowner’s premises”]; Melton v. Boustred, supra, 183
Cal.App.4th at pp. 537–538 [“[I]n cases involving liability for
third party criminal conduct, ‘the requisite degree of
21
foreseeability rarely, if ever, can be proven in the absence of prior
similar incidents.’ ”].)
That leaves English having to show that the first amended
complaint sufficiently alleges another indication of a highly
foreseeable risk of violent criminal assault at the Church or its
parking lot.7 (See Wiener, supra, 32 Cal.4th at pp. 1151–1152
[acknowledging that “some types of crime might be foreseeable
without prior similar incidents”]; Delgado, supra, 36 Cal.4th at
p. 240 [“ ‘heightened’ foreseeability” can be shown by “prior
similar incidents or other indications of a reasonably foreseeable
risk of violent criminal assaults in that location”]; Margaret W. v.
Kelley R. (2006) 139 Cal.App.4th 141, 155 [“ ‘heightened
foreseeability’ ” requires “knowledge of the perpetrator’s
propensity to assault or knowledge of prior similar incidents in
7 English contends the Ministry defendants mistakenly rely
on cases involving a “random” criminal act such as Hanouchian.
(See, e.g., Hanouchian, supra, 51 Cal.App.5th at pp. 104–105
[plaintiff attacked “ ‘suddenly, and without any provocation’ ” by
other partygoers unknown to plaintiff].) Ann M., Sharon P., and
Delgado likewise involved assailants who were unknown to their
victims. English argues this case, by contrast, involves a
targeted attack by someone who was “prone to violence against a
particular decedent,” i.e., Harrison. (See, e.g., Barber v. Chang
(2007) 151 Cal.App.4th 1456, 1466 [“the foreseeability question
here does not involve the prospect of ‘endemic’ [citation] violence
generally or a universe of ‘unknown assailants’ ” but instead “a
particular tenant identified as a threat”].) Although we
acknowledge that distinction, because of the burdensome nature
of the duty English seeks to impose on the Ministry defendants,
we must still determine based on Ann M. and its progeny
whether a violent attack at the Church or its parking lot was
highly foreseeable under the circumstances presented here.
22
that location”].) According to English, the allegations in the first
amended complaint together with the new allegations she raises
on appeal show the Ministry defendants knew about Dickson’s
propensity for violent behavior towards Harrison, and thus
establish the requisite degree of heightened foreseeability of a
violent incident at the Church premises.8
We disagree. The first amended complaint vaguely alleges
an undated prior incident where Dickson “was harassing
[Harrison] at the Church while she was volunteering,” and that
“a report was made” to the Ministry defendants that they “ ‘had
to look out for the two of them having problems.’ ” That alleged
incident, vague as it is and apparently not involving violence or
8 English’s focus on the foreseeability of Dickson’s attack
against Harrison appears at odds with caselaw instructing that
“a court’s task—in determining ‘duty’—is not to decide whether a
particular plaintiff’s injury was reasonably foreseeable in light of
a particular defendant’s conduct, but rather to evaluate more
generally whether the category of negligent conduct at issue is
sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed on the negligent party.”
(Ballard v. Uribe (1986) 41 Cal.3d 564, 572 fn. 6; see also
Regents, supra, 4 Cal.5th at pp. 629–630; Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 774–775; Vasquez v.
Residential Investments, Inc., supra, 118 Cal.App.4th at p. 286
[“foreseeability depends not on whether a particular plaintiff’s
injury was foreseeable as a result of a particular defendant’s
conduct, but instead on whether the conduct at issue created a
foreseeable risk of a ‘ “particular kind of harm” ’ ”].) We need not
resolve that tension because even if we assume that English
appropriately focuses on the foreseeability of Dickson’s attack on
Harrison, we conclude that Dickson’s violent attack of Harrison
in the Church parking lot was not highly foreseeable.
23
the threat of violence, fails to suggest, let alone make it highly
foreseeable, that Dickson would violently attack Harrison at the
Church. That remains so even coupled with the proposed new
allegations on appeal that prior to Harrison’s murder Dickson
took Harrison’s phone while the two were at Church to look
through her photos, and had shown up to Church functions and
services “because he knew he would be able to see” Harrison.9
These new allegations likewise do not involve violence or the
threat of violence, and thus similarly fail to show that it was
highly foreseeable that Dickson would violently attack Harrison
in the Church parking lot. Our conclusion is buttressed by the
absence of allegations in the first amended complaint or on
appeal that following Dickson’s harassment of Harrison,
Harrison feared for her safety at the Church or had asked the
9 According to English’s proposed new allegations, Dickson
was “only showing up at the Church at certain times because he
knew he would be able to see Harrison and would act violently or
erratically at best, i.e., the Church knew in advance Dickson was
stalking Harrison and did nothing.” The conclusory allegation
that Dickson “would act violently or erratically” while at a
Church service or function is not supported by any specific
factual allegations. We therefore do not rely on it. (See
Hanouchian, supra, 51 Cal.App.5th at p. 103 [on review of
sustaining of demurrer we “ ‘treat as true all material facts
properly pleaded, but not contentions, deductions or conclusions
of fact or law’ ”]; Megeff v. Doland (1981) 123 Cal.App.3d 251, 259
[disregarding conclusory allegations in complaint in evaluating
duty to prevent violent attack].) We also do not rely on the
conclusory allegation in the first amended complaint that the
Ministry defendants had received “numerous warnings . . . from
fellow parishioners” regarding Dickson, as it likewise is not
supported by any specific factual allegations.
24
Ministry defendants to take precautions to protect her from
Dickson while on the Church premises.
Nor are we convinced that English demonstrates the
requisite degree of heightened foreseeability with the allegations
in the first amended complaint that two months before her
murder, “Dickson admitted to Smith that [Harrison] had accused
him of ‘choking her out’ and that the authorities had to be called,”
resulting in a restraining order against Dickson. Although this
incident involved violence by Dickson, the allegation provides no
detail about the circumstances surrounding the incident to
suggest that further violence by Dickson was likely, let alone that
it was highly foreseeable he would brutally murder Harrison in
the Church parking lot two months later. (See Wiener, supra, 32
Cal.4th at p. 1150 [“[I]t is difficult if not impossible in today’s
society to predict when a criminal might strike.”]; Alvarez v.
Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1194,
1211–1212 [affirming nonsuit and holding that verbal and
physical altercation between patrons at restaurant, including “a
pushing and shoving match” and one patron “punching [another]
in the face,” did not make subsequent shooting of one patron by
another inside the restaurant foreseeable]; compare Barber v.
Chang, supra, 151 Cal.App.4th at pp. 1460, 1466–1467 [harm to
plaintiff foreseeable where landlord knew that on prior occasion
tenant aimed shotgun at plaintiff’s wife, yelled “ ‘leave my family
alone,’ ” and told wife to “ ‘ “[b]ring [plaintiff] here” ’ ”]; Madhani
v. Cooper (2003) 106 Cal.App.4th 412, 415–416 [foreseeability of
harm “clear” where landlord knew tenant had “engaged in
repeated acts of assault and battery” against plaintiff and her
mother and received “at least six reports of [tenant’s] violent and
threatening behavior”].) Again, we note that English does not
25
allege in her first amended complaint or on appeal that Harrison
alerted the Ministry defendants to the choking incident or
restraining order, that Dickson had subsequently threatened
Harrison with violence, that the Ministry defendants witnessed
any violent or threatening conduct by Dickson, that Harrison
feared further violence by Dickson, or that following the incident
Harrison had asked the Ministry defendants to take precautions
to protect her from Dickson while on the Church premises.
English raises two more allegations on appeal that she
contends made Dickson’s violent attack at the Church highly
foreseeable. First, on the day of Harrison’s murder, a Church
security guard told “her to park in the location where she was
killed because, he said, that area of the parking lot would be
monitored by” security.10 Second, the Ministry defendants
considered disinviting Dickson “from the premises prior to the
attack because they knew he was a danger to Harrison.”
Given the absence of allegations supporting the conclusion
that Dickson’s violent attack of Harrison in the Church parking
lot was highly foreseeable, that the Ministry defendants
considered taking precautions to protect Harrison does not
transform an otherwise unforeseeable violent act into a highly
foreseeable one. As our high court emphasized in Delgado,
“[c]ontrary to the suggestion that ‘the issue of foreseeability
becomes irrelevant’ whenever a proprietor has employed a
security guard [citation], the foreseeability of the criminal
10 English does not discuss the doctrine of negligent
undertaking or explain how it would apply here. (See
Hanouchian, supra, 51 Cal.App.5th at pp. 114–115 [discussing
negligent undertaking theory].) We therefore do not address it.
26
conduct in question remains relevant to the existence and scope
of a proprietor’s duty under the special relationship doctrine.”
(Delgado, supra, 36 Cal.4th at p. 248; see also id. at p. 249
[“Merely because a supermarket or other similar enterprise
‘chooses to have a security program’ that includes provision of a
roving security guard does not signify that the proprietor has
assumed a duty to protect invitees from third party violence.”])
To hold otherwise might deter landowners and proprietors from
taking reasonable measures to protect tenants, invitees, and
patrons; taking such measures would result in a duty of care to
safeguard against otherwise unforeseeable criminal acts on their
property.
Finally, English does not point to any allegations in the
first amended complaint or on appeal suggesting the Ministry
defendants knew Dickson’s attack of Harrison was imminent, or
that they failed to reasonably assist Harrison once they became
aware of Dickson’s violent assault in the Church parking lot.
Thus, this case does not involve the duty to assist an invitee
facing “danger from imminent or ongoing criminal assaultive
conduct occurring upon the premises.” (Morris v. De La Torre
(2005) 36 Cal.4th 260, 270; see Delgado, supra, 36 Cal. 4th at
pp. 245–247 [discussing bar’s “duty to respond to events
unfolding in its presence by undertaking reasonable, relatively
simple, and minimally burdensome measures”]; Marois v. Royal
Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 201–202
[triable issue of fact regarding security guards’ duty to intervene
in ongoing physical altercation].) Rather, English’s appeal
focuses on the “duty to provide security guards or other similarly
burdensome measures designed to prevent future criminal
27
conduct,” which requires a showing of heightened foreseeability.
(Morris v. De La Torre, supra, 36 Cal.4th at p. 270.)
Because English has failed to allege sufficient facts to
establish the high degree of foreseeability necessary to charge the
Ministry defendants with the duty to provide security guards,
“we need not consider the other Rowland factors.” (Hanouchian,
supra, 51 Cal.App.5th at p. 113.)
2. Duty to exclude Dickson from the Church
premises
We are likewise unpersuaded that the allegations in the
first amended complaint or those English raises on appeal
support the conclusion that the Church had a duty to exclude
Dickson from the premises. We analyze this proposed duty under
the same principles described above, primarily by balancing the
“ ‘foreseeability of the harm against the burden of the duty to be
imposed.’ ” (Hanouchian, supra, 51 Cal.App.5th at p. 108; see
Castaneda, supra, 41 Cal.4th at p. 1214.)
Although English has not discussed a case involving a duty
to ban a purportedly violent patron or invitee, we find Castaneda
instructive. There, the plaintiff, shot while he was a bystander to
a gang confrontation involving the residents of a mobilehome
across the street from the plaintiff’s mobilehome, sued the owner
of the mobilehome park. (Castaneda, supra, 41 Cal.4th at
p. 1209.) The plaintiff alleged the owner had a duty to evict the
residents involved in the gang confrontation “once they began to
harass and annoy other residents of the park.” (Id. at p. 1219.)
The California Supreme Court affirmed nonsuit in favor of
the owner, analyzing the plaintiff’s claim under the principles of
Ann M. and related cases. (Castaneda, supra, 41 Cal.4th at
pp. 1213–1214 [discussing Ann M., Delgado, Sharon P., and
28
Rowland].) It concluded that “undertaking eviction of a tenant
cannot be considered a minimal burden,” noting that the expense
of eviction proceedings “is not necessarily trivial,” and that
“undertaking eviction of a hostile tenant, especially one involved
in a violent street gang, could subject the landlord or property
manager to retaliatory harassment or violence.” (Id. at p. 1219.)
In light of those burdens, our high court looked “to the
circumstances of this case to see if [the mobilehome park owner]
was on notice of facts making a gang shooting” involving the
residents “highly foreseeable.” (Id. at pp. 1220–1221.)
Unlike Castaneda, English contends that “disinvit[ing]
Dickson as a member of the Church and keep[ing] him off the
property” imposes a minimal burden on the Ministry defendants.
She likewise implies it would have been a minimal burden for the
Ministry defendants “to impose some sort of separation policy” to
keep Dickson away from Harrison.
Even assuming the Church could have easily “disinvited”
Dickson as a member, keeping him off the Church premises
would not have imposed a minimal or trivial burden. As noted
already, it is unclear what level of reasonable protective
measures would be adequate to protect someone against a
determined violent criminal. (See Wiener, supra, 32 Cal.4th at
p. 1150; Vasquez v. Residential Investments, Inc., supra, 118
Cal.App.4th at p. 283; Pamela W. v. Millsom, supra, 25
Cal.App.4th at p. 959; 7735 Hollywood Blvd. Venture v. Superior
Court, supra, 116 Cal.App.3d at p. 905.) Dickson’s disregard of
the restraining order against him underscores that point;
tragically, it did nothing to stop him from confronting and fatally
attacking Harrison in the Church parking lot. We thus fail to see
29
how a “separation policy” imposed by the Church would have
been any more effective.
The Ministry defendants therefore understandably
emphasize that a landlord would have to take substantial
measures to fortify itself—for example, constant monitoring of
entrances, hiring security guards to patrol the premises, or
construction of fences or other barriers to control access to the
property—to prevent a violent individual from entering its
premises. Even for the Church, which employed a 15-person
security staff and had previously “arranged for their security
staff to keep families separated while at Church, in cases of
custody disputes, harassment, or divorce”, requiring it to
undertake those measures would impose a considerable burden.
(See Vasquez v. Residential Investments, Inc., supra, 118
Cal.App.4th at p. 285 [court must analyze how financially
burdensome proposed measures “would be to a landlord, which
measures could range from minimally burdensome to
significantly burdensome under the facts of the case”]; compare
Regents, supra, 4 Cal.5th at p. 633 [finding that “record reflects
that colleges have already focused considerable attention on
identifying and responding to potential threats, and have funding
sources available for those efforts”].)
In response to the Ministry defendants’ argument, English
counters that if the Ministry defendants had disinvited Dickson
from the Church, they could have “instructed security staff to
enforce this ban, call[ed] 911 immediately upon his arrival, or
even responded to his presence with their security staff.”
Instead, the first amended complaint alleges that at the time of
Dickson’s attack of Harrison in the Church parking lot, Smith
30
was inside the Church’s sanctuary area and “distracted from his
duties by the imminent arrival of Jones.”
English’s attempt to hold the Ministry defendants liable for
failing to take these steps presupposes that security guards were
constantly monitoring the Church parking lot or tracking
Harrison’s whereabouts at the Church premises. They were not,
at least according to the first amended complaint and the
allegations English raises on appeal. And we have already
rejected English’s claim that the Ministry defendants had these
duties as a matter of law. Finally, as noted above, English has
not alleged that the Ministry defendants were aware of Dickson’s
presence at the Church parking lot but failed to call 911 or take
other reasonable and minimally burdensome steps to separate
him from Harrison. (See Morris v. De La Torre, supra, 36 Cal.4th
at pp. 277–278; Delgado, supra, 36 Cal.4th at pp. 245–247;
Marois v. Royal Investigation and Patrol, Inc., supra, 162
Cal.App.3d at pp. 201–202.) Sadly, by the time the Ministry
defendants learned of the attack, it was too late to save Harrison.
Having concluded that the duty to ban and exclude Dickson
from the Church premises is a significant burden, English must
demonstrate that Dickson’s attack of Harrison in the Church
parking lot was highly foreseeable. (Castaneda, supra, 41
Cal.4th at pp. 1220–1221.) We have already addressed that issue
and concluded it was not.
Thus, we do not address the remaining Rowland factors
(Hanouchian, supra, 51 Cal.App.5th at p. 113), except to note
that, in addition to the significant burdens on the Ministry
defendants that would result from the duty English seeks to
impose, we are also mindful of the potential social costs. (See
Regents, supra, 4 Cal.5th at p. 633 [Rowland requires considering
31
burden “that recognizing a tort duty would impose on the
defendant and the community”].) Churches and other houses of
worship are normally open and welcoming places, not
strongholds. Also, imposing the sort of duties English proposes
here—banning and excluding parishioners who have acted
violently against other parishioners in the past—could impair the
relationship between parishioners and their religious community
or religious leaders. (Cf. Conti v. Watchtower Bible & Tract
Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1228–1229
[imposing duty on church to warn members when it “believe[s]
that a congregation member is capable of doing harm” could
“discourage wrongdoers from seeking potentially beneficial
intervention” and “contravene the public policy against disclosure
of penitential communications”].)
II. Motion to strike
English contends the trial court mistakenly struck from the
first amended complaint the punitive damages allegations
against the Ministry defendants.
Because we affirm the trial court’s dismissal of the first
amended complaint against the Ministry defendants without
leave to amend, we need not address whether the first amended
complaint sufficiently alleged punitive damages against the
Ministry defendants. (See, e.g., Morningstar, Inc. v. Superior
Court (1994) 23 Cal.App.4th 676, 697 [“Since we are sustaining
the demurrer without leave to amend, we need not reach
[defendant’s] motion to strike [plaintiff’s] request for punitive
damages.”].)
32
DISPOSITION
The judgment in favor of City of Refuge Ministries, Inc.,
Noel Jones Ministries, Inc., Noel Jones, and Bryant Smith is
affirmed. They are entitled to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
NGUYEN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33