Filed 7/6/26 Mesri v. Shamoeil CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PARVIN MESRI, B349058
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 24SMCV05059
v.
DIANA SHAMOEIL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edward B. Moreton, Jr., Judge. Reversed in
part and affirmed in part.
Los Angeles City Law and Taylor S. Kruse for Plaintiff and
Appellant.
Masserman & Ducey, Mitchell F. Ducey, Terri L.
Masserman and Ryan R. Masserman for Defendant and
Respondent Diana Shamoeil.
Klinedinst, Robert M. Shaughnessy and Gregory A.
Garbacz for Defendants and Respondents Rochelle Sterling and
Donald T. Sterling, as Trustees, etc.
_________________________
Children allegedly attacked plaintiff Parvin Mesri in front
of the apartment of Diane Shamoeil. Mesri sued Shamoeil and
those overseeing the apartment building where Shamoeil resides.
The trial court sustained defendants’ demurrers without leave to
amend. We reverse to permit Mesri to attempt to plead
Shamoeil’s vicarious liability for assault and battery under Civil
Code section 1714.1. We otherwise affirm.
I.
In May 2024, Mesri visited a friend’s apartment in the
Sterling International Towers, a residential property in Los
Angeles. The friend’s apartment was down the hall from
Shamoeil’s. As Mesri passed near Shamoeil’s apartment,
unidentified minors “intentionally, willfully, wantonly, and
maliciously attacked” her. They “thr[ew] a skateboard at her.”
Mesri sought medical care for injuries and suffered “severe
mental anguish.”
Mesri filed suit. Her complaint, filed in October 2024,
named her unknown assailants as defendants. It also named two
trustees of the Sterling Family Trust, who allegedly own and
operate the apartment building, as well as Beverly Hills
Properties LLC, of which the trust is a member or manager
(collectively the Sterling defendants). According to Mesri,
Shamoeil and the Sterling defendants bear responsibility for the
attack because they negligently managed, supervised, or
controlled the attackers; negligently hired and supervised
apartment personnel; or failed to patrol, secure, and supervise
the area around Shamoeil’s apartment. Mesri alleged causes of
action for (1) assault, (2) battery, (3) intentional infliction of
emotional distress, (4) negligence, (5) negligent hiring and
supervision, and (6) premises liability. She alleged the first two
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causes of action, assault and battery, solely against the unknown
assailants. She alleged the other causes of action against all
defendants.
Shamoeil and the Sterling defendants each demurred.
The trial court sustained Shamoeil’s demurrer. The
intentional infliction cause of action failed to allege Shamoeil
intended to cause emotional distress and failed to provide
sufficient specifics suggesting Shamoeil’s conduct was extreme or
outrageous. The negligence causes of action failed because no
allegations suggested Shamoeil, as a mere resident of the
building, owed Mesri a duty. The premises liability cause of
action failed because Shamoeil did not own or operate the
hallway where the incident occurred and Mesri had not identified
a relevant unsafe condition of the premises. The trial court also
rejected Mesri’s assertion that Shamoeil was the parent of the
unknown assailants and, accordingly, had a duty to prevent her
children from harming Mesri and had exposure for her children’s
intentional acts under Civil Code section 1714.1. The complaint,
noted the court, did not assert a parent-child relationship.
The trial court also sustained the Sterling defendants’
demurrer. The intentional infliction cause of action failed
because it did not sufficiently allege extreme or outrageous
conduct, because it lacked sufficiently specific allegations of the
Sterling defendants’ intent to cause harm, and because its
allegations of severe distress were conclusory. The trial court
also rejected the negligence claims because no allegations in the
complaint suggested the attack was foreseeable and, therefore,
the Sterling defendants owed no duty of care. The trial court
further struck the claim for punitive damages.
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The demurrer rulings, issued in February 2025, were
problematically confusing as to whether the trial court had
intended to grant Mesri leave to amend. The rulings seemed to
variously allow amendment of some claims but not others.
Mesri sought clarification twice. The court eventually
clarified that no leave to amend was granted.
Meanwhile, however, Mesri had attempted to file a first
amended complaint within 20 days of the trial court’s original
demurrer rulings. Mesri’s revised pleading alleged on
“information and belief” that Shamoeil “is the parent and/or
guardian of” the assailants and should be held “jointly and
severally liable for the[ir] intentional torts . . . under California
Civil Code §1714.1.” The trial court did not consider this
pleading for any purpose.
After service of notice of entry of judgment, Mesri appealed.
II.
“On appeal from a judgment dismissing an action after
sustaining a demurrer without leave to amend . . . [t]he reviewing
court gives the complaint a reasonable interpretation, and treats
the demurrer as admitting all material facts properly pleaded.
[Citations.] The court does not, however, assume the truth of
contentions, deductions or conclusions of law. [Citation.] The
judgment must be affirmed ‘if any one of the several grounds of
demurrer is well taken. . . .’ [Citation.] However, it is error for a
trial court to sustain a demurrer when the plaintiff has stated a
cause of action under any possible legal theory.” (Aubry v. Tri-
City Hospital Dist. (1992) 2 Cal.4th 962, 966–967 (Aubry).)
When reviewing the denial of leave to amend a complaint,
we ask whether the trial court abused its discretion. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) “[I]t is an abuse of discretion
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to sustain a demurrer without leave to amend if the plaintiff
shows there is a reasonable possibility any defect identified by
the defendant can be cured by amendment.” (Aubry, supra,
2 Cal.4th at p. 967; Blank, at p. 318.)
III.
We address the sufficiency of Mesri’s pleaded claims
against Shamoeil, and then turn to those against the Sterling
defendants.
A.
As to Shamoeil, Mesri attempts to revive only her causes of
action for assault, battery, and negligence. We address those
claims and no others.
Mesri contends she has viable claims for assault and
battery against Shamoeil because Mesri has alleged Shamoeil’s
children injured her while committing those intentional torts.
Mesri cites Civil Code section 1714.1 for her vicarious liability
theory. It provides that “[a]ny act of willful misconduct of a
minor that results in injury or death to another person or in any
injury to the property of another shall be imputed to the parent
or guardian having custody and control of the minor for all
purposes of civil damages, and the parent or guardian having
custody and control shall be jointly and severally liable with the
minor for any damages resulting from the willful misconduct.”
(Civ. Code, § 1714.1, subd. (a).)
Mesri’s original complaint omits any allegation that the
assailants had any relation to Shamoeil. But she proffered a first
amended complaint that makes allegations of Shamoeil’s
vicarious liability for assault and battery under Civil Code
section 1714.1. And Mesri argues on appeal that she could
amend to make these allegations.
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Shamoeil offers no substantive argument regarding Civil
Code section 1714.1 and the causes of action for assault and
battery. Instead, Shamoeil argues she was not named as a
defendant in the original complaint for the assault and battery
causes of action and, therefore, these claims cannot be seen as
applying to her on appeal. She cites the usual rule that issues
not raised in the trial court cannot be raised on appeal. But,
first, Mesri sought to file a first amended complaint raising
section 1714.1 in connection with the assault and battery claims.
And second, that effort aside, the usual rule of forfeiture is
modified by statute when it comes to demurrers. “When any
court makes an order sustaining a demurrer without leave to
amend the question as to whether or not such court abused its
discretion in making such an order is open on appeal even though
no request to amend such pleading was made.” (Code Civ. Proc.,
§ 472c, subd. (a).) Shamoeil neither cites this statute nor
authority suggesting why it should not apply in the
circumstances here. (Cf. Aubry, supra, 2 Cal.4th at p. 967
[admonishing courts to consider “any possible legal theory”].) We
also note the longstanding hesitation of appellate courts to
foreclose amendment when a plaintiff, like Mesri, has filed only
an original complaint and has not had a single opportunity to
amend. (Eghtesad v. State Farm General Ins. Co. (2020)
51 Cal.App.5th 406, 411.)
Accordingly, we conclude the trial court erred by denying
Mesri leave to amend the assault and battery causes of actions to
attempt to plead Shamoeil’s vicarious liability under Civil Code
section 1714.1.
As to negligence, Mesri contends Shamoeil was negligent
based on her allegedly “leaving [her] children unsupervised in a
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large high-rise” “three doors down” from her apartment. This
conduct, she alleges, “create[d] a foreseeable risk of property
damage or bodily harm.” Mesri, however, cites no authority
allowing negligence liability for an apartment dweller, or even a
parent, who has let children go off and play when those children
then allegedly commit an unanticipated intentional tort. Mesri’s
failure to cite authority forfeits her arguments on this theory of
liability. (Poncio v. Department of Resources Recycling &
Recovery (2019) 34 Cal.App.5th 663, 672.) Moreover, Mesri has
not alleged, or offered to allege, that Shamoeil was on notice that
these children would maliciously attack Mesri. Indeed, she
simply states she could “allege that Shamoeil knew her children
were unsupervised in common areas with skateboards, that she
was physically present in her apartment just doors away, and
that she had both the opportunity and ability to supervise them.”
Assuming Shamoeil was in a sufficient relationship with Mesri
for duty to arise, Mesri’s allegations would nonetheless be an
untenable basis on which to let a negligence claim proceed. (See
Conti v. Watchtower Bible & Tract Society of New York, Inc.
(2015) 235 Cal.App.4th 1214, 1237 [rejecting assertion that
parents’ negligent supervision of their minor led to her
molestation when parents lacked knowledge]; Margaret W. v.
Kelley R. (2006) 139 Cal.App.4th 141, 152–162 [rejecting a
mother’s duty to prevent rape of another’s child who was sleeping
over at her house]; Hanouchian v. Steele (2020) 51 Cal.App.5th
99, 111 [host of a sorority party owed duty of care to guests, but
not to prevent a rape]; cf. Leger v. Stockton Unified School Dist.
(1988) 202 Cal.App.3d 1448, 1461 [a school need not provide
“constant supervision” of children].) There is not a “cloud of
suspicion over all teenagers”; parents can usually let their
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children play without expecting them to commit crimes.
(Margaret W., at p. 162.) If parents had to chaperone their
children every moment of the day, parents would get nothing
done and children would be stifled.
Mesri’s citation to cases addressing a tenant’s liability in
negligence for dangerous conditions when in control of common
passageways are unhelpful. (Cf. Johnston v. De La Guerra
Properties, Inc. (1946) 28 Cal.2d 394, 401 [addressing tenant’s
liability when tenant took responsibility for illuminating an
entranceway].) Mesri’s conclusory allegation of Shamoeil’s
“control” of the apartment hallway is insufficient to plead a duty
of care related to a dangerous condition, especially given Mesri
has alleged the injury resulted from intentional misconduct and
not the hallway’s configuration.
As to Shamoeil, then, we will reverse as to the assault and
battery causes of action but otherwise will affirm.
B.
Turning to the Sterling defendants, Mesri appears to seek
to revive her causes of action for negligence, negligent hiring and
supervision, and premises liability.
Mesri argues the “criminal acts” of the children were
“patently foreseeable” and so gave rise to a duty of care. Why?
Because the Sterling defendants knew children lived in the
building and defendants’ staff should have noticed children with
skateboards and deemed the children risky. Also, Mesri would
amend her complaint to allege Sterling defendants’ staff saw the
alleged assailants walk past the lobby front desk with
skateboards. But noticing children with skateboards would not
put someone on notice that a child would intentionally throw a
skateboard at a passerby, and the Sterling defendants could not
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be expected to endure the heavy burdens of keeping a lookout at
all times for youth with skateboards to prevent such violent
criminality — certainly absent any allegations of similar past
incidents. (See Hanouchian v. Steele, supra, 51 Cal.App.5th at p.
111; see generally Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 676 [“[A] duty to take affirmative action to
control the wrongful acts of a third party will be imposed only
where such conduct can be reasonably anticipated”].)
Accordingly, Mesri did not state and cannot proceed on her
causes of action against the Sterling defendants.
DISPOSITION
We reverse the judgment in part as to Shamoeil. The trial
court shall vacate its order as to Shamoeil’s demurrer and shall
enter a new order sustaining Shamoeil’s demurrer without leave
to amend, except that the new order shall grant Mesri leave to
amend the assault and battery causes of actions to attempt to
plead Shamoeil’s vicarious liability under Civil Code section
1714.1. Otherwise, we affirm. As between Mesri and Shamoeil,
they shall bear their own costs on appeal. The Sterling
defendants shall recover their costs on appeal from Mesri.
SCHERB, J.
We concur:
STRATTON, P. J. WILEY, J.
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