Parkhill vs. Salt Creek Grille OC

Defendants’ argument regarding the location of the fireworks is unavailing. The Complaint alleges the fireworks took place at Salt Creek Grille OC located at 32802 Pacific Coast Highway, Dana Point, near Plaintiff’s residence at 28 Monarch Bay Drive. This is sufficient to identify the location of the fireworks.

Moreover, the allegations in the Complaint are not uncertain as Plaintiff alleges sufficient facts to determine the conduct at issue. Therefore, the demurrer for uncertainty is OVERRULED.

First Cause of Action – Negligence

“To prevail in an action for negligence, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff’s injuries.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1187.)

Here, the Complaint alleges: “Defendants, and each of them, owed a duty to operate its premises and conduct its business in a reasonably safe and lawful manner and to refrain from engaging in conduct creating an unreasonable risk of harm to nearby persons and property.” (Complaint, ¶ 19.) Defendants breached that duty by conducting fireworks near a residential area without authorization or a lawful permit, and without providing notice to Plaintiff. (Id. at ¶ 20.) As a result, Plaintiff sustained physical injuries trying to secure his dogs who were panicked by the noise of the fireworks.

Although Defendant contends it does not owe a duty to Plaintiff because he was not a patron of the restaurant or an invitee,

Plaintiff’s allegation that they owed a duty in the care and use of their premises is valid.

Accordingly, the demurrer to the first cause of action is OVERRULED.

Second Cause of Action – Negligence Per Se

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the [party opposing a finding of negligence per se] violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. The first two elements are questions of fact, while the latter two are questions of law.” (Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263-364 [cleaned-up].)

Here, the Complaint alleges Defendants violated Health and Safety Code § 12500, et seq. by discharging fireworks at the Salt Creek Grille OC without a lawful permit. The violation caused injuries to Plaintiff, and Plaintiff is within the class of people such laws were designed to protect.

Defendants argue that Plaintiff’s injuries did not result from the fireworks coming into contact with him or his property, and Plaintiff was not a patron or an invitee on the property. Therefore, he was not in the class of people that the statute was adopted to protect.

However, Defendants cite no legal authorities to support this position. Plaintiff alleges he resided in the residential area very near to Salt Creek Grille and was within the class of people the statute was designed to protect. Such allegations are sufficient to state a claim for negligence per se.

Third Cause of Action – Private Nuisance

A private nuisance claim requires three essential elements: (1) interference with the plaintiff’s use and enjoyment of property, (2) substantial interference causing actual damage, and (3) unreasonable interference. (Civ. Code, § 3479.)

The Complaint alleges the fireworks unreasonably interfered with his use and enjoyment of his property, including excessive noise, disruption of peace, panic and distress to Plaintiff’s dogs, and disturbance of his quiet enjoyment of his home and yard. (Complaint, ¶ 34.) There are no allegations, however, regarding how the fireworks caused actual damage to Plaintiff’s property.

Accordingly, the demurrer to the third cause of action is SUSTAINED.

Plaintiff has 15 days leave to amend.

Clerk to give notice.

8 U.S. Bank National Association vs. Pacific Life Insurance Company

2023-01330408 Defendant Pacific Life Insurance Company’s Motion for Summary Judgment and/or Adjudication

Defendant Pacific Life Insurance Company’s Motion for Summary Judgment is DENIED.

Defendant Pacific Life Insurance Company’s Motion for Summary Adjudication is DENIED as to Issue 1-5.

Delaware Law Applies to Determine the Question of Whether the Policy in Question is void ab initio:

California courts “determine which jurisdiction’s law will govern” by applying the “governmental interest test, which sets out a threestep inquiry: ‘First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists.

Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law “to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the state” [citation], and then ultimately applies “the law of the state whose interest would be the more impaired if its law were not applied.”’” (Chen v. Los Angeles Truck Centers, LLC (2019) 7 Cal.5th 862, 867-868 [quoting Kearney v.

Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 107- 108].)