Judge Anne Hwang, Case Number: 21STCV31722, Date: 2023-09-27 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

DEPARTMENT	32
HEARING DATE	September 27, 2023
CASE NUMBER	21STCV31722
MOTION	Demurrer
MOVING PARTY	Defendant The Colony Royal Oaks Homeowner’s Association
OPPOSING PARTY	Plaintiffs Tatyana Goldshteyn and Dina Goldshteyn

Defendant The Colony Royal Oaks Homeowner’s Association (“Defendant”) demurs to the first amended complaint filed by Plaintiffs Tatyana Goldshteyn and Dina Goldshteyn (“Plaintiffs”). The demurrer is opposed.

The first amended complaint (FAC) alleges that on September 2, 2020, a tree owned, maintained, and controlled by Defendant impacted Plaintiffs’ vehicle and caused a collision. The FAC alleges causes of action for negligence and premises liability and was brought against the City of Los Angeles, County of Los Angeles, and Does 1 to 50. On May 26, 2023, Plaintiffs added Defendant to the FAC as Doe 1.

Defendant now demurs arguing that the negligence and premises liability causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. Plaintiffs oppose.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

According to the declaration of Lawrence Walter, counsel for Defendant did not attempt to meet and confer in person or by telephone as required, but rather sent an email to Plaintiff’s counsel. In any event, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41(a)(4).)

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the¿proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

The elements of premises liability are duty, breach, causation of the injury, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205.)¿¿

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)¿“[P]roperty owners are liable for injuries on land they own, possess, or control. But . . . the phrase own, possess, or control is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162.) Additionally, this duty applies to natural conditions on the land. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371.)

On September 2, 2020, Plaintiff TATYANA GOLDSHTEYN operated a certain 2019 Toyota Camry on Sepulveda Blvd. at or near Valley Meadow Rd. in Sherman Oaks, CA 91436. At the previously alleged time and place, Plaintiff, DINA GOLDSHTEYN was a passenger in Plaintiff, TATYANA GOLDSHTEYN's vehicle. At the previously alleged time and place, when Plaintiff was driving on Sepulveda Blvd., a large tree, owned, maintained, controlled by Defendants, CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, and DOES I to 50, inclusive, impacted Plaintiffs vehicle causing the subject collision. As a proximate result of the negligence of Defendants CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, and DOES 1-50, inclusive, and each of them, and the resulting incident, Plaintiffs were rendered sick, sore, lame, hurt, injured and were damaged. Plaintiffs allege that Defendants, and each of them, negligently created and/or otherwise gave rise to the dangerous condition of public property and/or had actual and/or constructive knowledge of the existence of the dangerous condition, namely a defective and poorly maintained tree existing over a public roadway. Plaintiffs additionally allege, that Defendants knew or, in the exercise of reasonable care and diligence, should have known that an injury, such as the one sustained by Plaintiffs, would occur as a result of the dangerous condition existing on public property.

Here, Plaintiffs have set forth sufficient facts to state a claim for negligence and premises liability. The FAC alleges Doe 1 (as well as the City and County of Los Angeles) owned, maintained, and controlled the tree, which impacted Plaintiffs’ vehicle, and as a proximate result of Doe 1’s negligence, Plaintiffs were injured. The FAC further alleges that each defendant negligently created the dangerous condition and had actual or constructive knowledge of it. The FAC sufficiently alleges facts constituting the causes of action for negligence and premises liability. Defendant’s primary argument is that the Homeowner’s Association is located in Encino and the incident is alleged to have occurred in Sherman Oaks. However, it is not the function of a demurrer to resolve the truthfulness of the complaint, and all factual allegations are assumed to be true. It is sufficient that Plaintiffs have alleged facts to constitute the alleged causes of action.

Code of Civil Procedure section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Here, Plaintiffs have alleged that a tree fell on their car while driving on Sepulveda Blvd. at or near Valley Meadow Rd. in Sherman Oaks, CA 91436. Based on the FAC, Defendant can reasonably infer that Plaintiffs are alleging that Defendant owned, maintained, or controlled the tree. Therefore, one can reasonable determine what the complaint is alleging and where the incident allegedly took place, as the FAC states generally two cross-streets. The FAC is therefore not fatally uncertain.

Defendant shall give notice of the Court’s order and file a proof of service of such.