ARNETTA BROWN VS. BURLINGTON COAT FACTORY OF TEXAS, INC.

A court reviewing a demurrer accepts as true the facts alleged in the complaint as well as those of which it may take judicial notice (John’s Grill, supra, 16 Cal.5th at p. 1008, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318), but does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967 (Aubry).)

June 3, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ C.

Discussion

Plaintiff seeks to hold defendant liable for the manner in which it manages its retail environment. Defendant argues that the SAC is fatally defective where it fails to allege a breach of duty based on a third party’s action. Plaintiff counters that shoplifting is a known and anticipated part of the retail business, and that defendant’s actions created and escalated the risk to plaintiff. Plaintiff argues that she was directly injured by defendant’s conduct in failing to use ordinary care to prevent injury to others while trying to maintain store security and loss of inventory. (Opp., at p. 8.)

“In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages.” (Rest.2d Torts, § 281; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426.) Although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises safe for invitees. (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Rest.2d Torts, § 332.)

The elements of plaintiff’s negligent supervision cause of action mirror the negligence cause of action. “An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815, citing Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564–1565.) Negligence liability will be imposed upon the employer if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Ibid., citing Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

The primary question before the court is whether defendant owed plaintiff a duty of care which it breached. Civil Code, section 1714, subdivision (a) provides that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

In determining whether an exception to Section 1714’s default rule of duty exists, California courts look to the factors in Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 (Rowland), superseded by statute as stated in Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 735-736. To determine whether to find the existence of a duty, Rowland directs courts to consider: the foreseeability of injury, certainty that plaintiff suffered injury, connection between injury and defendant’s conduct, moral blame, preventing future harm, burden to defendant and the community, and availability of insurance.

California authorities divide the Rowland factors into two categories: foreseeability and related concepts, and public policy considerations. (Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1021–1022.)

June 3, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care articulated by [Civil Code] section 1714 is whether the injury in question was foreseeable.” [citation] In making this assessment, the court must focus not on particularities of the defendant's conduct and the plaintiff's injury, but on “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 .... [citation].”

(Id., at p. 1022, citations omitted.)

As to foreseeability, “the 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.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 (Cabral), cleaned up, and emphasis in original.) The third factor, closeness of the connection between the conduct and injury suffered, is also relevant when a court is called upon to determine whether the defendant owes “a duty to prevent injury that is the result of third party conduct,” and in those circumstances “the touchstone of the analysis is the foreseeability of that intervening conduct.” (Kesner v.

Superior Court (2016) 1 Cal.5th 1132, 1148, cleaned up.)

The SAC alleges on information and belief, that Burlington failed to reasonably implement and enforce safe incident-handling procedures at its Daly City store on May 5, 2023, including by permitting or failing to prevent the use of a storewide intercom accusation and a rapid approach/escalation by Burlington employees while the alleged shoplifter was in close proximity to plaintiff. (SAC, ¶¶ 24-29.) That is, the store employees failed to implement and enforce defendant’s incident handling procedures, including the “strict ‘no-chase’ policy prohibiting pursuit of suspected shoplifters outside of the premises” in reflection of “Burlington’s recognition that theft-related incidents can present safety risks if mishandled, including risks of escalation, panic flight, and injury to bystanders.” (SAC, ¶ 23.)

Based on the SAC’s allegations, which the court must accept as true in reviewing a demurrer, plaintiff has alleged that defendant’s actions and inactions created a situation where a suspected shoplifter would take flight in the store and create a risk of injury to shoppers. If proven, the allegations would support a finding that Burlington’s “management of [its] property” — contributed to the risk of harm that resulted in plaintiff’s injuries. (Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 311; see also ibid., quoting Brown v.

USA Taekwondo (2021) 11 Cal.5th 204, 215, fn. 7 [“Regardless of whether there is a basis for recognizing an affirmative duty, the no-duty-to-protect rule will not relieve the defendant of an otherwise applicable duty to exercise reasonable care when, by its own conduct, the defendant has increased the risk of harm to the plaintiff.”].) Having determined that defendant owed a duty of care to plaintiff, whether defendant breached that duty is a factual question that cannot be determined on a demurrer. (Cabral, supra, 51 Cal.4th at p. 769.)

June 3, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ Defendant’s demurrer as to both causes of action is OVERRULED.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, plaintiff’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.