Judge Audra Mori, Case 19STCV34737 2022-10-31 Tentative Ruling

Plaintiff Martha Guerra (“Plaintiff”) filed this action against defendants City of Los Angeles, County of Los Angeles, 8826 W. Pico Blvd., LLC, and Mehrdad Pakdaman for premises liability and negligence arising out of Plaintiff’s trip and fall on a sidewalk. The complaint alleges that on October 3, 2018, Plaintiff was walking on the sidewalk near 8826 and 8832 Pico Blvd., Los Angeles, CA when Plaintiff tripped and fell on a raised, broken and/or deteriorating area of the sidewalk. On March 3, 2020, Plaintiff filed a Request for Dismissal as to defendant County of Los Angeles only. On August 30, 2021, each of defendants City of Los Angeles’s (the “City”) and 8826 W. Pico Blvd., LLC’s (“8826”) motion for summary judgment was granted as to Plaintiff’s complaint. Thereafter, on March 15, 2022, Plaintiff filed an Amendment to Complaint naming Kevin Dearborn (“Dearborn”) and Harvey Silverman (“Silverman”) as Does 1 and 3, respectively.

Defendants Dearborn and Silverman (collectively, “Defendants”) now demur to the complaint arguing the first and second causes of action for premises liability and negligence fail to state sufficient facts to constitute a claim against Defendants. Defendants have filed a notice of non-receipt of opposition to Defendants’ demurrer, and to date, no opposition has been filed.

Defendants contend that Plaintiff is pursuing claims against Defendants based on the same defect in the sidewalk for which judgment was already entered in favor the City and 8826. Defendants argue Plaintiff’s claims are barred by issue preclusion because the defect has already been determined to be trivial. Further, Defendants contend the claims are barred by the applicable statute of limitations under CCP § 335.1. Lastly, Defendant contends that Plaintiff fails to state any cause of action against Defendants, as they are not owners of the property where Plaintiff fell but own adjacent property.

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). (CCP §§ 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.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The Court finds Defendants have fulfilled this requirement prior to filing the demurrer. (Demurrer Tran Decl. ¶¶ 8-12.)

Defendants request judicial notice be taken of the Court’s file in this action. (Mot. at p. 3:2-17.) The request is granted; judicial notice is taken of the existence of the records and rulings therein.

A demurrer may be sustained based on a finding that the claims in a complaint are barred under the doctrine or collateral estoppel. (See e.g., Alvarez v May Dep't Stores Co. (2006) 143 Cal.App.4th 1223, 1240 [claims properly resolved on demurrer based on collateral estoppel], and Dailey v. City of San Diego (2013) 223 Cal.App.4th 237, 255-56 [trial court correctly found that collateral estoppel barred the plaintiff’s cause of action in sustaining demurrer without leave to amend].) Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and decided in prior proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) “Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.] There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party.” (DKN Holdings, LLC, 61 Cal.4th at 824.) “Issue preclusion differs from claim preclusion in two ways. First, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues. Second, unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy in the first suit.” (Id.)

To establish issue preclusion, ““First, the issue sought to be precluded from relitigation must be identical to that decided in the former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (Lucido, 51 Cal.3d at 341.)

“[N]ormally, an order is not res judicata or collateral estoppel later in the same action.” (Riverside County Trans. Commission v. Southern California Gas Co. (2020) 54 Cal.App.5th 823, 838.) There is an exception to this: “an appealable order can be res judicata or collateral estoppel in a later phase of the same action.” [1] (Ibid.; In re Matthew C. (1993) 6 Cal.4th 386, 393, superseded by statute on a different point as stated in People v. Mena (2012) 54 Cal.4th 146 [“If an order is appealable, however, and no timely appeal is taken therefrom, the issues determined by the order are res judicata.”].)

Here, the premises liability and negligence claims in the complaint allege that the defendants in this matter, including Does 1 through 50, negligently owned, maintained, operated, controlled or safeguarded the sidewalk “at or near 8826 and 8832 Pico Blvd., Los Angeles, CA 90035, such that a raised and/or broken and/or deteriorating sidewalk was allowed to exist and be left in disrepair. Defendants failed to barricade the area and/or to warn of the dangerous condition …” (Compl. at pp. 5, 6.) Plaintiff alleges that on October 3, 2018, she was walking on the sidewalk at this location “when all of a sudden Plaintiff tripped and fell on a raised and/or broken and/or deteriorating area of the sidewalk.” (Ibid.)

The City and 8826 each previously moved for summary judgment contending that the undisputed evidence showed that the subject sidewalk defect on which Plaintiff tripped was trivial as a matter of law. Plaintiff opposed each motion, and the City and 8826 each filed a reply to Plaintiff’s oppositions. The City and 8826 met their moving burdens to show that the defect at issue was trivial as a matter of law, and Plaintiff failed to raise a triable issue of material fact regarding such. (Min. Order, Aug. 30, 2021.) Accordingly, the City’s and 8826’s motions for summary judgment were granted, and the City’s and 8826’s proposed orders were signed and filed on October 15, 2021. 8826 then filed Notice of Entry of Judgment with proof of service on Plaintiff on November 15, 2021, and the City filed Notice of Entry of Judgment with proof of service on Plaintiff on November 16, 2021. The Court’s records show that to date, Plaintiff has not appealed either judgment.

Plaintiff then filed an Amendment to Complaint naming Defendants Dearborn and Silverman as Does 1 and 3 on March 15, 2022. Moving Defendants now argue that Plaintiff’s claims in the complaint are barred by issue preclusion. As stated above, 8826 and the City served notice of entry of the judgments in their favor on November 15 and 16, 2021, and Plaintiff did not appeal the judgments. California Rules of Court, Rule 8.104(a)(1)(B) provides that a “notice of appeal must be filed on or before … 60 days after the party filing the notice of appeal … is served by a party with a document entitled ‘Notice of Entry’ of judgment … accompanied by proof of service.” When not timely notice of appeal is filed from an order granting summary judgment, it becomes final and is not subject to collateral attack. (County of Los Angles v. Harco National Ins. Co. (2006) 144 Cal.App.4th 656, 660.) Because the order granting the City’s and 8826’s summary judgment motions was appealable and no timely appeal was taken, the issues determined in the order can be collateral estoppel in this proceeding. (In re Matthew C., 6 Cal.4th at 393; Riverside County Trans. Commission, 54 Cal.App.5th at 838; see also McClain v. Rush (1989) 216 Cal.App.3d 18, 29-30 [collateral estoppel applied where issues previously determined by grant of summary judgment], and Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230-31 [same].)

In analyzing whether all elements of issue preclusion are met, first, Plaintiff’s claims in the complaint against Defendants are identical to the causes of action asserted against the City and 8826 and are based on the same sidewalk defect. Second, the issues were actually litigated as the issues pertaining to the triviality of the alleged defect that caused Plaintiff’s trip and fall were fully briefed and argued with the motions for summary judgment on August 30, 2021. Third, the issues were necessarily decided in the order granting the motions for summary judgment. The evidence demonstrated “that the height differential was in plain sight and did not pose a substantial risk of injury to a pedestrian using due care.” (Min. Order, Aug. 30, 2021.) The subject defect was determined to be trivial as a matter of law. Fourth, as analyzed above, the August 30, 2021 order and judgments in favor of the City and 8826 are now final. Lastly, Plaintiff, against whom preclusion is sought, was a party to the summary judgment proceedings.

Defendants and the judicially noticeable evidence therefore establish that Plaintiff’s claims against them are barred by the doctrine of issue preclusion. Plaintiff does not oppose the demurrer or otherwise contend that issue preclusion does not apply to her claims against Defendants.

Defendants’ demurrer to the complaint is sustained as to the first and second causes of action.

The burden is on Plaintiff to show in what manner she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) However, Plaintiff does not oppose the instant motion or otherwise make any showing as to how the above defects can be cured.

Defendants’ demurrer to the complaint is sustained without leave to amend. The complaint against Defendants Dearborn and Silverman is ordered dismissed.]

Hon. Audra Mori

Judge of the Superior Court

[1] A second exception applies in criminal cases, which is not applicable here. (Riverside County Trans. Commission, 54 Cal.App.5th at 838.)