Judge: Anne Hwang, Case: 23STCV31035, Date: 2024-07-01 Tentative Ruling

Case Number: 23STCV31035    Hearing Date: July 1, 2024    Dept: 32

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.  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. 

TENTATIVE RULING

MOTION

On December 20, 2023, Plaintiff Angela Cendy Betancourt (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, Ruffin A. Johnson, Shauna Johnson, Jasmine Kostraba, an individual, and as trustee for Jasmin Kostraba Trust, and Does 1 to 50 for injuries related to a sidewalk fall. Plaintiff asserts causes of action for dangerous condition of public property, general negligence, and premises liability.

Against Defendant Ruffin A. Johnson (“Defendant”), Plaintiff asserts the general negligence and premises liability causes of action.

Defendant now demurs to the complaint, arguing it fails to state a cause of action, is time-barred, and uncertain. No opposition has been filed.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).  

MEET AND CONFER

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).)

The Declaration of Anthony C. Kohrs, Defendant’s counsel, states the following: “I have met and conferred by phone with Plaintiff’s counsel Gor Asryan concerning this demurrer. The parties were unable to reach an agreement.” (Kohrs Decl. ¶ 3.) Therefore, the meet and confer requirement is met.

ANALYSIS

As an initial matter, the Court finds that the complaint is not so vague or ambiguous to warrant sustaining the demurrer based on uncertainty. The allegations are clear enough for Defendant to ascertain what legal theories are being asserted. The Court now turns to whether the allegations state enough facts to constitute causes of action.

Negligence and Premises Liability

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

 “While negligence is ordinarily a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer.” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095.)

A. Duty  

A “general duty to maintain the property one owns or occupies [generally does not] extend to abutting property that is owned by others – and, in particular, to abutting property owned by public entities.” (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255.) “That is because, for more than 150 years, the ‘general rule’ has been that, ‘in the absence of a statute[,] a landowner is under no duty to maintain in a safe condition a public street’ or ‘sidewalk’ ‘abutting upon his property.’” (Id.) 

“This general rule has one notable exception: A person who owns or occupies land will owe a duty to maintain abutting, publicly owned property in a reasonably safe condition if that person has ‘exercise[d] control over th[at] property.’” (Lopez, supra, 55 Cal.App.5th at 255.) An owner of private property exerts control of abutting, publicly owned property either “(1) when the owner or occupier has created that hazard [citation omitted], or (2) if the hazard was created by a third party, when the owner or occupier has ‘dramatically asserted’ dominion and control over the abutting publicly owned property by effectively treating the property as its own.” (Id. at 256 [emphasis in original, alteration omitted].)

B. Analysis

Here, Defendant mainly argues that he owed no duty because Plaintiff has alleged that the fall occurred on a public sidewalk and therefore fails to allege that the incident took place on Defendant’s property or was caused by Defendant’s conduct.

The second cause of action for negligence alleges the following:

“On January 30, 2023, Plaintiff was walking when she tripped and fell on a piece of sidewalk that was raised/uneven/fractured/broken/slanted/missing/defective at or near 1440 and/or 1436 Angelus Avenue in Los Angeles, CA 90026 (“SUBJECT AREA”). The SUBJECT AREA was owned/maintained/leased/controlled by Defendants, RUFFIN A. JOHNSON, SHAUNA JOHNSON, JASMINE KOSTRABA as a trustee for JASMIN KOSTRABA TRUST (hereinafter “Defendants”), and DOES 1 to 50. This SUBJECT AREA was raised/uneven/fractured/broken/slanted/ missing/defective and as a result was in an unsafe, unreasonable, hazardous, defective, and/or dangerous condition as a result of the negligence and carelessness of Defendants, which had existed for a sufficient period of time prior to the INCIDENT.”

(Complaint ¶ 33.)

The complaint also alleges that Defendant owed a duty to maintain the property in a reasonably safe condition, Defendant breached the duty, and caused injuries to Plaintiff. (Complaint ¶¶ 34–36.) The third cause of action for premises liability alleges the same facts.

Therefore, because Plaintiff has alleged that Defendant controlled the subject property where her fall took place, there are enough facts to support a legal duty. (See Lopez, supra, 55 Cal.App.5th at 255.)  To the extent Defendant argues that Plaintiff cannot simultaneously allege that the City of Los Angeles and Defendant controlled the subject sidewalk, Defendant provides no authority in support. (See Demurrer, 7.) To the extent Defendant argues that Plaintiff must allege specific facts demonstrating that he exercised control over the sidewalk, evidentiary facts are not required at the demurrer stage.

Therefore, the demurrer is overruled.[1]

CONCLUSION AND ORDER

Therefore, Defendant’s demurrer to Plaintiff’s complaint is OVERRULED.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.