Judge Ashfaq G. Chowdhury, Case Number: 24NNCV04043, Date: 2025-04-11 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV04043, Date: 2025-04-11 Tentative Ruling

Case Number: 24NNCV04043 Hearing Date: April 11, 2025 Dept: E

Case No: 24NNCV04043
Hearing Date: 04/11/2025-8:30am

Trial Date: UNSET

Case Name: 1100 E. BROADWAY LLC, a California limited liability company v. AT&T MOBILITY SERVICES, LLC d/b/a AT&T CALIFORNIA, a California entity of unknown business form; NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company; T-MOBILE USA, INC., a Delaware corporation; LANDMARK INFRASTRUCTURE HOLDING COMPANY LLC, a California limited liability company; and DOES 1 through 100, inclusive,

[TENTATIVE RULING ON DEMURRER]

Moving Party: Defendant, Landmark Infrastructure Holding Company, LLC (Defendant or Landmark)

Responding Party: Plaintiff, 1100 E Broadway LLC, a California limited liability company (Plaintiff)

Moving Papers: Notice/Demurrer; Proposed Order

Opposition Papers: Opposition; Alec G. Bedrossian Declaration; Alec G. Bedrossian Declaration;

Reply Papers: Reply

RELIEF REQUESTED
“Defendant Landmark Infrastructure Holding Company, LLC (“Landmark”) will and hereby does demur, generally and specially, to the Complaint of Plaintiff 1100 E Broadway LLC (“Plaintiff”), and each cause of action therein, pursuant to Code of Civil Procedure § 430.80. The Demurrers are made on the grounds that the Complaint fails to state a cause of action upon which relief can be granted.

The Demurrers are based on this Notice of Demurrers, the attached Demurrers, Memorandum, Request for Judicial Notice, and Declaration of Edward Wei, the records and files herein, and such other matters as the Court may consider at the time of hearing.”

(Def. Dem., p. 2.)

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. (Code Civ. Proc., §430.41(a)(4).)

Here, Defendant did not submit a meet and confer declaration.

BACKGROUND
Plaintiff, 1100 E. Broadway LLC, filed the instant action on 9/5/2024.

Plaintiff named the following Defendants in this action: (1) AT&T Mobility Services, LLC d/b/a AT&T California (“AT&T”); (2) New Cingular Wireless PCS, LLC (“Cingular Wireless”); (3) T-Mobile USA, Inc. (“T-Mobile”); and (4) Landmark Infrastructure Holding Company LLC.

The first cause of action for negligence is alleged against all Defendants.

The second cause of action for breach of contract is only alleged against Landmark.

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
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 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS

Preliminary

Generally speaking, both parties’ papers are relatively incoherent and difficult to follow.

Defendant demurs to both the negligence and breach of contract causes of action on grounds of failure to state facts sufficient to state a cause of action.

Since Defendant is arguing that Plaintiff did not allege sufficient facts to constitute a cause of action, one may expect Defendant to cite legal authority that lists the elements of a specific cause of action, and then explain how Plaintiff did not allege those elements.

Defendant does not do so.

Instead, Defendant believes that records conclusively demonstrate that Plaintiff has no viable claim against it.

Defendant provides no context for many of the arguments it asserts. Defendant arrives at various of conclusions for reasons unclear to the Court. Defendant cites cases in which the Court has no idea as to how they are relevant for purposes of a demurrer hearing.

Likewise, Plaintiff’s Opposition is equally confusing.

Since Plaintiff is attempting to argue that it did in fact state facts sufficient to state a cause of action, one may expect Plaintiff to cite legal authority that lists the elements of a specific cause of action, and then explain how Plaintiff successfully alleged each element.

Plaintiff does not do so.

Instead, Plaintiff also provides no context for the arguments and conclusions it asserts. Plaintiff also cites case law in which the Court has no idea how it is relevant for purposes of Plaintiff’s arguments.

Second Cause of Action - Breach of Contract
In relevant part, the General Allegations in Plaintiff’s Complaint alleges as follows:

10. On or about September 29, 2017, Plaintiff acquired ownership of the multi-unit commercial property and structures located at 1100-1104 E. Broadway, Glendale, California 91205 (the “Property”).

11. Pursuant to a Purchase and Sale of Telecom Easement and Assignment Agreement between Plaintiff and Defendant Landmark (the “Easement Agreement”), Defendant Landmark has, at all times relevant herein, possessed an easement over portions of the roof of the Property. A true and correct copy of the Easement Agreement is attached hereto as Exhibit A and incorporated herein by reference.

12. Plaintiff alleges upon information and belief that, at all times relevant herein, the AT&T Defendants and T-Mobile leased portions of the roof of the Property from Defendant Landmark, for purposes of installing, maintaining, operating and controlling telecommunications equipment on said roof, including, without limitation, antennas, base stations, and other related infrastructure and equipment for the operation of their respective wireless communication networks.

13. This matter arises out of the significant damages sustained to the Property, including the units and property therein, due to numerous water leaks and intrusions emanating from the roof of the Property, which occurred on various occasions between December 2021 and approximately December 2023 (the “Losses”). Plaintiff alleges upon information and belief that the Losses were caused by Defendants’ faulty, improperly installed, constructed, and/or maintained equipment and parapet walls, as well as their failure to properly or adequately repair and/or maintain the roof of the Property, pursuant to the Easement Agreement and their respective lease agreements.

14. Upon virtually each occurrence, Plaintiff timely reported the Losses to Defendants, notified them of the extensive damages to the Property, and requested that they perform repairs and rectify these issues. Plaintiff has made numerous attempts to resolve and address these Losses and related issues amicably and in a timely fashion by, among other things, retaining various contractors and specialists to assess the cause and nature of such damages, and mitigating damages as reasonably possible. Defendants, and each of them, however, have failed to adequately address the Losses and their underlying causes, and have refused to compensate Plaintiff for such damages to date.

15. Furthermore, as a result of Defendants’ negligence and breaches detailed herein, Plaintiff has incurred significant expenses in its attempts to address and mitigate the damages arising out of the Losses, which include, among other things, procuring water mitigation and restoration services, environmental and mold testing services, and contractors and specialists to repair damages to the affected units at the Property, as well as the property contained therein.

16. As a further direct and proximate cause of Defendants’ aforementioned negligent and wrongful conduct, Plaintiff has, and continues to, sustain ongoing harm and damages, including, without limitation, lost rental income, diminished property value, tenant expenses, continued disruption to tenants and their businesses within the Property, Property repairs, and other foreseeable and consequential damages.

(Compl. ¶¶ 10-16.)

Additionally, the allegations listed under the breach of contract cause of action allege:

23. Plaintiff re-alleges and incorporates by reference all paragraphs above, as though fully set forth herein.

24. Pursuant to the Easement Agreement, Defendants Landmark and DOES 1 through 50, inclusive, and each of them, were obligated to faithfully perform all obligations under the Easement Agreement and Landmark’s respective agreements with the AT&T Defendants and TMobile. Namely, Defendants Landmark and DOES 1 through 50, inclusive, and each of them, were responsible and possessed the powers and duties to properly and adequately use, maintain, repair, and control the roof of the Property, as well as any equipment and infrastructure installed, constructed and existing thereon, in a manner that would not result in or cause interference with or damage to the Property, including the units and property therein.

25. The Easement Agreement also requires Defendants Landmark and DOES 1 through 50, inclusive, and each of them, to indemnify Plaintiff and hold it harmless against any and all claims, damages, costs and expenses caused by or arising out of the negligent acts or omissions or willful misconduct in the operations or activities on the Property by Defendants Landmark and DOES 1 through 50, inclusive, and each of them, or the employees, agents, or contractors of Defendants Landmark and DOES 1 through 50, inclusive, and each of them.

26. Plaintiff further alleges upon information and belief that, pursuant to the Easement Agreement, Defendants Landmark and DOES 1 through 50, inclusive, and each of them, were responsible and had possessed the powers and duties to repair any damages to and of the individual units at the Property which were, directly or indirectly, caused by said Defendants own negligence, carelessness, and/or recklessness, or that of any person or entity acting, or purporting to act, under said Defendants’ control, direction, and/or delegation.

27. The Easement Agreement was in full force and effect at the time of the Losses.

28. Plaintiff did all, or substantially all, of the significant things that the Easement Agreement required Plaintiff to do, except to the extent that performance may have been excused and/or prevented by Defendants’ wrongful conduct.

29. Defendants Landmark and DOES 1 through 50, inclusive, and each of them, breached the terms of the Easement Agreement by failing to properly or adequately install, repair and/or maintain equipment, infrastructure, and walls on the roof of the Property, and by failing to properly or adequately repair and/or maintain the roof of the Property, thereby causing the Losses and resulting damages.

30. Defendants Landmark and DOES 1 through 50, inclusive, and each of them, additionally breached the Easement Agreement and their respective duties of care owed to Plaintiff in various manners and on numerous occasions, including, but not limited to, the following:

a. Unreasonably failing to properly or adequately install, repair and/or maintain the roof of the Property, including the fixtures, equipment and infrastructure constructed and existing thereon, with standard and/or reasonable maintenance practices;

b. Unreasonably failing to timely compensate Plaintiff for the damages sustained as a result of the Losses;

c. Unreasonably failing to properly or adequately address, repair or rectify the underlying and readily-apparent causes and damages of the Losses after receiving timely and consistent notices of the Losses, and each of them;

d. Unreasonably and/or falsely representing, insinuating, stating, and/or otherwise acting in a manner that is intended to, and did, induce Plaintiff to believe that Defendants will repair and/or compensate Plaintiff for the damages sustained as a result of the Losses;

e. Unreasonably and/or intentionally delaying and failing to carry out repairs and restoration with respect to the damages sustained to the Property in a timely manner and within the standard of care; and

f. Unreasonably acting or failing to act in a manner that deprives Plaintiff of the obligations and benefits owed to it under the Easement Agreement and the ownership, operation and management of the Property; and

g. Unreasonably compelling Plaintiff to institute this action.

31. As a direct and proximate result of said Defendants’ wrongful conduct and breach of contractual obligations, Plaintiff has and continues to suffer damages in an amount to be determined according to proof at the time of trial, but in excess of the jurisdictional minimum of this Court, plus pre-judgment interest pursuant to California Civil Code section 3289(b) and other foreseeable and consequential damages according to proof and in amounts to be determined at the time of trial.

(Compl. ¶¶ 23-31.)

Discussion – Breach of Contract
As a preliminary matter, Defendant does not state what the elements are that must be alleged to sufficiently state a cause of action for a breach of contract claim.

Therefore, below the Court explains what must be alleged to state a cause of action for a breach of contract claim.

To state a cause of action for breach of contract, Plaintiff must allege “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A cause of action for breach of contract is subject to demurrer if “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., §430.10(g).) A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) An allegation of an oral agreement must “set[] forth the substance of its relative terms.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.)

Additionally, in no clear manner does Defendant explain which element of a breach-of-contract claim Defendant is arguing that Plaintiff did not allege.

It appears as if Defendant is arguing that Plaintiff did not successfully allege the first element – the existence of the contract – by arguing that Plaintiff is not a party to the contract and that Plaintiff does not have standing to enforce this action.

(1) The existence of the contract
“While the ‘allegations [of a complaint] must be accepted as true for purposes of demurrer,’ the ‘facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.’ ” (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1145-46 quoting Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767.)

“We begin with the rule that ‘[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.’ [Citation.] Where the complaint shows the plaintiff does not possess the substantive right or standing to prosecute the action, ‘it is vulnerable to a general demurrer on the ground that it fails to state a cause of action.’ [Citations.]” (The H.N. & Frances C. Berger Foundation v. Perez (2013) 218 Cal.App.4th 37, 43 quoting Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 955.)

Defendant argues that Plaintiff is not a party to the “PSA”. Defendant thus argues that Plaintiff does not have standing to enforce the agreement. [At the hearing, Defendant should address what it considers to be the “PSA.” Presumably, Defendant is referring to Exhibit A that Plaintiff refers to in Paragraph 11 of its Complaint.]

Here, the Court finds Defendant’s argument availing.

At first glance, Plaintiff appeared to have alleged the existence of a contract in Paragraphs 11 and 24 of the Complaint.

In relevant part:

(Compl. ¶¶ 11 & 24.)

Upon looking at Exhibit A attached to the Complaint, the Court does not see how Plaintiff is a party to a contract with Defendant, Landmark, thus, the Court does not see how Plaintiff alleged the existence of a contract between Plaintiff and Defendant because it does not appear as if Plaintiff has standing to bring this action.

Further, it isn’t entirely clear what is considered “Exhibit A.” Exhibit A consists of several agreements, with several different titles, and in some instances several different Exhibit A’s. Exhibit A appears to span 64 pages; however, it isn’t entirely clear what is Exhibit A since there are several exhibits within Exhibit A and other differently named exhibits.

Therefore, Defendant’s argument on standing appears to be availing.

“Civil Code section 1559 provides: ‘A contract, made expressly for the benefit of a third person, may be enforced by him [or her] at any time before the parties thereto rescind it.’ Because third party beneficiary status is a matter of contract interpretation, a person seeking to enforce a contract as a third party beneficiary ‘ “must plead a contract which was made expressly for his [or her] benefit and one in which it clearly appears that he [or she] was a beneficiary.” ’ [Citation.]” (The H.N. & Frances C. Berger Foundation v. Perez (2013) 218 Cal.App.4th 37, 43 quoting Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 957.)

Additionally, the Court does not see that Plaintiff alleges to have entered into a contract with Defendant under a third-party beneficiary theory.

In Opposition, Plaintiff’s standing argument is incomprehensible.

Run With the Land
Defendant also argues that the “PSA” does not run with the land and merged into the easement agreement.

Here, the Court does not understand Defendant’s argument.

The Court also does not understand Plaintiff’s merger argument.

Duty
Defendant also argues that Plaintiff’s cause of action for breach of contract fails because Landmark owes no duty to maintain the equipment.

Here, the Court finds Defendant’s argument incomprehensible.

Duty is not an element for a breach of contract claim. To state a cause of action for breach of contract, Plaintiff must allege “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

The Court fails to see what “duty” has to do with alleging a breach of contract cause of action.

Tentative Ruling – Second Cause of Action – Breach of Contract
Here, Plaintiff did not appear to allege the first element of a breach-of-contract claim – the existence of the contract – because based on Plaintiff’s Exhibit A attached to the Complaint, the Court failed to see how Plaintiff alleged standing in a breach of contract claim against Defendant, Landmark.

Therefore, the Court SUSTAINS Defendant’s demurrer to the first cause of action. The Court GRANTS Plaintiff leave to amend.

While Defendant did not attack the third element of breach, the Court notes the following.

“Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity. (See generally 4 *6 Witkin, Cal. Procedure (4th ed. 1996) Pleading, § 4495, pp. 585–586; Bentley v. Mountain (1942) 51 Cal.App.2d 95, 98, 124 P.2d 91 [general averments that defendants violated contract insufficient; pleader must allege facts demonstrating breach]; Thompson v. Purdy (1931) 117 Cal.App. 565, 567, 4 P.2d 282, [general averments that defendant failed to perform duties or comply with contract insufficient].)” (Levy v. State Farm Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5-6.)

With respect to breach, Plaintiff alleged:

b. Unreasonably failing to timely compensate Plaintiff for the damages sustained as a result of the Losses;

g. Unreasonably compelling Plaintiff to institute this action.

(Compl. ¶¶ 29-30.)

The Court notes that it is entirely unclear what provision of the contract, whatever the contract may be, Plaintiff is alleging that Defendant breached. In light of Exhibit A being 64 pages and consisting of several exhibits and several different documents, the Court does not quite understand what provisions of the contract Plaintiff is alleging that Defendant breached.

If Plaintiff files an amended complaint, it would be helpful for Plaintiff to more clearly plead what provisions of the contract each Defendant(s) are breaching.

First Cause of Action – Negligence
In relevant part, Plaintiff’s Complaint alleges:

17. Plaintiff re-alleges and incorporates by reference all paragraphs above, as though fully set forth herein.

18. Plaintiff alleges upon information and belief that Defendants were responsible for and had duties to properly and adequately maintain and repair the roof of the Property, including their aforementioned equipment and infrastructure installed, constructed and existing thereon.

19. Defendants, and each of them, breached their respective duties of care by failing to properly or adequately install, repair and/or maintain their respective equipment, infrastructure, and parapet walls on the roof of the Property, as well as their failure to properly or adequately repair and/or maintain the roof of the Property, thereby causing the Losses and resulting damages.

20. Defendants, and each of them, were negligent, careless, and/or reckless in the use, operation, control, maintenance and/or supervision of the roof of the Property, as well as their respective equipment and infrastructure existing thereon, and breached their duties of care by their acts and omissions, including, without limitation:

b. Unreasonably failing to timely compensate Plaintiff for the damages they sustained as a result of the Losses;

e. Unreasonably failing to carry out repairs and restoration with respect to the damages sustained to the Property in a timely manner and within the standard of care.

21. Defendants’ aforementioned careless, negligent and/or reckless conduct created and exposed, and continues to, Plaintiff and its property to an unreasonable risk of harm and was and is a substantial factor in causing Plaintiff’s damages and harm alleged herein.

22. As a direct and proximate result of Defendants’ aforementioned negligence and wrongful conduct, Plaintiff has and will continue to sustain damages, in an amount to be determined at trial, but in excess of the minimum jurisdictional amount of this Court. Plaintiff alleges upon information and belief that their damages would not have occurred but for the negligence of Defendants.

(Compl. ¶¶ 17-22.)

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662, 142 Cal.Rptr.3d 24.) Whether a duty of care exists is a question of law to be determined on a case-by-case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70.)” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

Defendant argues that Plaintiff cannot avoid dismissal by repackaging a defective contract claim as a cause of action for negligence.

Defendant cites case law for the proposition that contracting parties do not owe a duty of care to third parties who may be impacted by contractual performance.

Defendant also argues that to avoid the impact of contractual provisions barring liability, Plaintiff reformulates its claim as one for common-law negligence.

Defendant also argues that Plaintiff does not identify any common-law duty owed by Landmark or any basis for recognizing one in the circumstances.

Generally speaking, the Court does not find Defendant’s argument availing regarding the argument that Plaintiff is simply repackaging a defective contract claim as a cause of action for negligence. That is simply Defendant’s opinion.

Additionally, most of Defendant’s arguments regarding negligence are incomprehensible.

Likewise, Defendant’s argument on the economic loss rule is incomprehensible.

In Opposition, Plaintiff’s argument regarding negligence/duty is also incomprehensible.

“Whether a duty of care exists is a question of law to be determined on a case-by-case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70.)” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

The Court will hear argument because both parties’ arguments are incomprehensible with respect to negligence.

TENTATIVE RULING – First Cause of Action – Negligence
The Court will hear argument because both parties’ arguments are incomprehensible with respect to negligence. The Court is not entirely sure the basis for which Plaintiff is trying to assert a duty of care against Plaintiff.

TENTATIVE RULING OVERALL
The Defendant’s demurrer to the second cause of action for breach of contract is sustained with leave to amend granted. The Court will hear argument as to the first cause of action for negligence. If the Court sustains the demurrer to the first cause of action, the Court is likely to grant leave to amend.

Defendant requests judicial notice of Exhibit 1 attached to the demurrer. Defendant argues that Exhibit 1 is a recorded instrument executed by Landmark and the prior owner of the Property. Defendant argues that Exhibit 1 establishes Landmark’s easement and is the legally operative document.

Defendant’s request for judicial notice of Exhibit 1 attached to the demurrer is GRANTED; however, the Court is not admitting the truth of the matters therein. That is, the Court does not agree that Exhibit 1 establishes what Defendant alleges it establishes.