Judge: Anne Richardson, Case: 23STCV26755, Date: 2024-08-30 Tentative Ruling

Case Number: 23STCV26755    Hearing Date: August 30, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

            Pleadings

            Plaintiff Ezequiel Oros sues Defendants Goldrich & Kest Industries LLC, Shappell Properties, Inc., Schneider Electric USA Inc., Square D, KDC Foodservice, Chipotle Mexican Grill, Does 1 through 50, and Roe Corporations 1 through 50 pursuant to a November 2, 2023 FirstAmended Complaint alleging claims of (1) Strict Product Liability against Does 1-50 and Roe Corporations 1-50, and (2) Negligence against all Defendants. On December 29, 2023. Oros filed two amendments to the FAC adding Grand Promenade as Doe 2 and GK Management as Doe 3.

The claims arise from injuries Oros sustained while working at a construction site located at 255 South Grand Avenue, Los Angeles, California (the Property). (FAC ¶17.) Oros claims that Does 1-50 and Roe Corporations 1-50 designed, manufactured, distributed, sold and placed into the stream of commerce defective electrical power transmission systems which caused his injury. (FAC ¶¶ 15-16, 21.) Oros further alleges that each of the Defendants was negligent in the manufacture, design, preparation, sale, distribution, ownership, supervision and/or maintenance, of the Property and the electrical power transmission systems. (FAC ¶27.)

Motion Before the Court

On May 13, 2024, Defendants Grand Promenade and GK Management Co., demurred to the entire FAC on the grounds of sufficiency and uncertainty. (Code Civ. Proc. §§ 430.10 subds. (e)(f).)

Defendants further demurred on the ground that the second cause of action is barred by the Privette Doctrine. (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.)

On August 13, 2024, Oros filed an opposition to the demurrer.

On August 22, 2024, Grand Promenade and GK Management replied.

Requests for Judicial Notice

Per Defendant’s request, the Court takes judicial notice of Exhibit A (Grant Deed) and Exhibit B (Assessor’s map). (Dem., RJN, Evid. Code, §§ 452, subds. (c), (d), (h), 453, subds. (a)-(b).)

Demurrer

Meet and Confer

The Court finds that Grand Promenade and GK Management satisfied the meet and confer requirement pursuant to Code of Civil Procedure section 430.41, subdivision (a)(3)(A). (Ford Decl., ¶¶ 3.)

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device 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.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Code of Civil Procedure section 430.10 subdivision (f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc. § 430.10, subd. (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. It goes to the doubt as to what the pleader means by the facts alleged.” ((Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “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.) 

Analysis

A.    Demurrer to Entire Complaint for Uncertainty: SUSTAINED with leave to amend

Code of Civil Procedure section 430.10 subdivision (f) provides that a pleading is uncertain if it is ambiguous and unintelligible. Grand Promenade and GK Management allege that because the FAC refers to Does 1-10 as the “owners and operators” of the Property (FAC ¶ 9), and also plead that Does 1-10, among others, “designed, manufactured, distributed, sold and placed into the stream of commerce an electrical power transmission systems [sic].” (FAC ¶ 15.) Thus, they argue that it is fatally uncertain what role Plaintiff alleges Grand Promenade and GK Management had in Plaintiff’s injury.

Plaintiff responds that it has pled in the alternative that these Defendants are either the owners and operators, or the entities that designed, manufactured, distributed, sold and placed the defective electronical systems into the stream of commerce, or both. (Opp., pp. 9-10.)  

Defendants reply that this is merely conclusory pleading and that Plaintiff must clarify the complaint to allege some basis for his allegations.

The Court agrees that the FAC does need to be amended to provide the elements to meet each claim as to Grand Promenade and GK Management that were brought in as Does 2 and 3. While the allegations in FAC may have been appropriately broadly alleged to apply to large numbers of Does and Roes, now that certain parties have been amended in, they are entitled to know what Plaintiff’s theory of the case is as to them. It would be the rare case, indeed, in which the owner and operator was also the manufacturer of the product used on that property alleged to be defective. The Court will sustain the demurrer on this ground, with leave to amend.

B.    Demurrer to First Cause of Action – Strict Product Liability: SUSTAINED, with leave to amend

A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way.” (Soule v. GM Corp. (1994) 8 Cal.4th 548, 560). The threshold issue for bringing a strict liability claim is that the defendant must be a manufacturer, distributor, or retailer.

Grand Promenade and GK Management argue that Oros fails to allege facts that either Grand Promenade or GK Management are manufacturers, sellers, or distributors of the electrical systems that caused Oros’s injuries. (Demurrer, pp. 6-7.) They state that Grand Promenade is the owner of the Property and G.K. Management is the manager of the Property. (Demurrer, p. 5.)

In his opposition, Oros cites the allegation that “Does 1-50” are “in a commercial business of manufacturing, distributing, and/or selling” the electrical system that caused his injuries. (Opp., p. 7, citing FAC ¶¶ 20, 21.) However, Oros does not cite to any specific allegations in the FAC that Grand Promenade or GK Management actually are in the electrical systems business and to the contrary, it appears from the Grant Deed attached to the request for judicial notice that Grand Promenade is the owner. Plaintiff does not seem to deny GK Management’s assertion that it is the management company.  Where a party alleges only conclusions rather than facts, a demurrer may be sustained. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531.)

Because Oros has failed to allege facts sufficient to constitute a cause of action for strict products liability, the Court will SUSTAIN the demurrer as the first cause of action, with leave to amend.  

C.    Demurrer to Second Cause of Action – Negligence & Negligence Per Se: OVERRULED

The elements for a negligence cause of action are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff.  (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) To plead a cause of action for negligence per se, a plaintiff must allege that (1) defendant violated a statute, ordinance or regulation; (2) the violation proximately caused death or injury to plaintiff; (3) such death or injury was of the kind that the statute, ordinance or regulation was designed to prevent; and (4) plaintiff belonged to the class of persons for whose protection the statute, ordinance or regulation was adopted. (Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1087.)

Grand Promenade and GK Management argue that Oros has failed to state how Grand Promenade or GK Management owe a legal duty to Oros. (Demurrer pp.7-8.) They also claim that Oros’s negligence per se claim is insufficient because Oros does not specify which statutes, ordinances, or regulations Grand Promenade or GK Management violated. (Demurrer pp.7-8.) Alternatively, they allege that Oros’s claim is barred by the Privette doctrine.

 As to the negligence per se argument, in the FAC, Oros states the Defendants owed him a duty to “operate and/or maintain the [Property] as a reasonably prudent individual/business in the same or similar circumstance.” He further alleges that the Defendants “owed a duty to Plaintiff, and the public, to hire, retain, train and supervise its/his/her/their employees to identify and fix dangerous conditions.”  Oros does not identify any statute, ordinance or regulation that his negligence per se claim is based upon, but requests leave to amend if the Court agrees that a specific statute, regulation, or ordinance should be stated. 

 Regarding Defendants’ second argument, the Privette Doctrine comes from the California Supreme Court's decision in Privette v. Superior Court (1993) 5 Cal.4th 689, 698 and related cases such as Hooker v. Department of Transportation (2002) 27 Cal.4th 198 and Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664. Under the Privette Doctrine, “when the contractor's failure to provide safe working conditions results in injury to the contractor's employee, additional recovery from the person who hired the contractor—a nonnegligent party—advances no societal interest that is not already served by the workers' compensation system.” (Privette, supra, 5 Cal.4th at 692.) Therefore, “[a]n employee of an independent contractor generally may not sue the contractor's hirer for work-related injuries.” (Id. at 702.)

The Privette doctrine has narrow exceptions, including where the property owner knew or should have known of the “latent or concealed preexisting hazardous condition” which caused the plaintiff’s injuries.  (Kinsman, supra 37 Cal.4th at 664.)  Additionally, “a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries” if the hirer acted negligently in exercising such control. (Hooker, supra, 27 Cal.4th at 202.)

In their Demurrer, Grand Promenade and GK Management argue that the Defendants “leased the Property to Chipotle, who then contracted out the renovation work on the premises” and that Grand Promenade, as the Property owner, is entitled to a presumption of non-liability under the Privette doctrine. When the Privette doctrine applies, the burden will shift to the plaintiff to respond with sufficient evidence raising a triable issue as to whether an exception applies here.

In his opposition, Oros does not dispute that the Privette doctrine is generally applicable, but rather argues that both the Kinsman and Hooker exceptions to the doctrine have been alleged. Plaintiff cites to his allegations that “Defendants […] knew the [electrical system] was defective, yet they negligently, willfully, and deliberately failed to fix it” (FAC ¶ 16), and “Defendants negligently maintained control over the manner of work to be done on the Premises.” (FAC ¶ 18).

As to the portion of the second claim alleging negligence per se, the Court agrees with Defendants that the better practice in stating such a claim is to cite the regulation or ordinance at issue. However, here, the Court finds that Oros has sufficiently alleged two potential exceptions to the Privette doctrine that would allow liability against an owner as it relates to the negligence portion of the claim. While Defendants cite to Johnson v. The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617 and Blaylock v. DMP 250 Newport Center, LLC (2023) 92 Cal.App.5th 863 as guidance upon which this Court should sustain the demurrer, both of those cases were motions for summary judgment in which the court of appeal agreed that the plaintiff had not produced evidence sufficient to constitute a triable issue of material fact as to any recognized exception to the Privette doctrine. Nor is Defendants’ citation to Quelimane v. Stweart Title Guaranty Co. (1998) 19 Cal.4th 26, 57-58, persuasive. In that case, the plaintiff had alleged a duty to a third party with no allegations as to how such a duty, generally disfavored, arose. (Id.at p. 58 [“Recognition of a duty to manage business affairs so as to prevent purely economic loss to third parties in their financial transactions is the exception, not the rule, in negligence law”].)

Here, however, albeit broadly, Plaintiff has alleged exceptions to the Privette doctrine. At the outset of litigation, before discovery has been commenced, it may be difficult to allege with specificity how a hazard was known, and what specific control they exercised over the work. “The plaintiff is required only to set forth the essential facts of his case with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.”  (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382.) Unlike with the strict liability claim, for which it is hard to understand why these Defendants are being named, the potential liability for an owner and manager in this context is sufficiently clear to put them on notice of the issues they must meet.

As a demurrer cannot be granted as to only one portion of a claim, and since here, there are sufficient allegations to support the claim for negligence under the exceptions to the Privette doctrine, the Court OVERRULES the demurrer as to the claim for Negligence and Negligence Per Se. 

Conclusion

The Demurrer to Plaintiff’s First Amended Complaint by Defendants Grand Promenade and GK Management Co., Inc, and specifically, as to the definition of Does 1-10 which includes Does 2 and 3 on the ground of uncertainty is SUSTAINED, with leave to amend.

The Demurrer to Plaintiff’s First Amended Complaint by Defendants Grand Promenade and GK Management Co., Inc is SUSTAINED, with leave to amend, as to the First Cause of Action for Strict Products Liability.

The Demurrer to Plaintiff’s First Amended Complaint by Defendants Grand Promenade and GK Management Co., Inc is OVERRULED, as to the Second Cause of Action for Negligence and Negligence Per Se.