Judge: Ashfaq G. Chowdhury, Case: 23GDCV01036, Date: 2024-01-26 Tentative Ruling
Case Number: 23GDCV01036 Hearing Date: January 26, 2024 Dept: E
DEMURRER
[CCP
§430.10 et. seq.; CCP § 436]
Date: 1/26/24
Case No: 23GDCV01036
Trial Date: None
Set
Case Name: Onik Khodaverdian v. Montrose Gardens
Apartments
Moving
Party: Defendant Montrose Gardens Apartments
Responding
Party: Plaintiff Onik Khodaverdian
Pleading
filed on: May
18, 2023
Demurrer
filed on: October
17, 2023
Pleading
served on: June 26, 2023
Meet and
Confer? Ok
RELIEF
REQUESTED:
Sustain demurrer to First Amended Complaint
and first cause of action for failure to state sufficient facts to constitute a
cause of action.
CAUSES
OF ACTION: from FAC
1)
Premises Liability
2)
Negligence
3)
Willful Failure to Warn
4)
Dangerous Condition of Public Property
SUMMARY
OF FACTS:
MEET
AND CONFER
A party filing a demurrer “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 shall meet and confer at least five days
before the date the responsive pleading is due. If the parties are not able to
meet and confer at least five days prior to the date the responsive pleading is
due, the demurring party shall be granted an automatic 30-day extension of time
within which to file a responsive pleading, by filing and serving, on or before
the date on which a demurrer would be due, a declaration stating under penalty
of perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.” (Code Civ. Proc.,
§430.41, subd. (a)(2).) Failure to sufficiently meet and confer is not grounds
to overrule or sustain a demurrer. (Id., §430.41(a)(4).)
Defendants submit the declaration of Sean M. Swinford who states
that he spoke with Plaintiff’s counsel by telephone and email, but the parties
could not reach an agreement. (See Swinford Decl. ¶¶ 3-4.) Therefore, the meet
and confer requirement has been met.
JUDICIAL
NOTICE
Defendant’s request for judicial notice of plaintiff’s complaint
and amended complaint is GRANTED pursuant to Evidence Code section 452.
ANALYSIS:
Demurrer
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.) 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.) The court “treat[s] the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law
....” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer
proceeding, the defects must be apparent on the face of the pleading or via
proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116
Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters; therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Code Civ. Proc.,
§§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether
the complaint, as it stands, unconnected with extraneous matters, states a
cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)
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 ... 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.)
On demurrer, a trial court has an independent duty to “determine
whether or not the ... complaint alleges facts sufficient to state a cause of
action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186
Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of
action, where some valid claim is alleged but “must dispose of an entire cause
of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148
Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a
demurrer without leave to amend if there is any reasonable possibility that the
defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
Premises
Liability
A
premises liability
cause of action will lie where the following elements are established: defendant
owned, leased, occupied or controlled the property; defendant was negligent in
the use or maintenance of the property, plaintiff was harmed, and defendant’s
negligence was a substantial factor in causing plaintiff’s harm. (CACI 1000.)
Civil
Code § 1714(a) provides, in pertinent part:
Everyone 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, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself or
herself.
Accordingly,
it is recognized that every landowner has a duty to maintain property in his
possession or control in a reasonably safe condition. (Ann M. v. Pacific
Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (disapproved on other
grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, n.5).
Defendant
argues that the Court should sustain the demurrer because the FAC fails to
state any cause of action against defendant or any other named defendant as all
counts (negligence and willful failure to warn) are alleged against unnamed,
doe defendants. Defendant also asserts that the demurrer should be sustained
alternatively on the ground that the FAC fails to allege jurisdiction. Defendant
points out that none of the boxes for jurisdiction (limited, unlimited, or
reclassified) are checked in the form complaint. Thus, the demurrer may be
sustained under Code of Civil Procedure sections 430.10(a) and/or (e).
Plaintiff
does not appear to dispute defendant’s arguments. Rather, he concedes that
there are mistakes in the FAC and requests the Court to grant leave to amend.
The Court finds that the FAC as it stands should be sustained for failure to
state a cause of action and failure to provide the Court’s jurisdiction of the
subject of the cause of action. However, the Court finds that these
deficiencies may be cured by amendment.
Thus,
the Court SUSTAINS the demurrer to the FAC WITH 10 days LEAVE TO AMEND.