Judge Audra Mori, Case 20STCV49669 2022-09-01 Tentative Ruling

Plaintiff Amelia Linares (“Plaintiff”) filed this action against defendants Roberto Garcia dba Garcia's Tires, Roberto Garcia, Garcia's Wheels & Tires, and Does 1 to 50 for injuries Plaintiff sustained at an auto body shop when a car lift fell down and smashed Plaintiff’s foot. The complaint alleges causes of action for negligence and premises liability against all defendants. The premises liability claim includes two counts- one for negligence and another for willful failure to warn.

As relevant here, on April 21, 2022, Plaintiff filed an Amendment to Complaint naming Montemax Properties, LLC (“Montemax”) as Doe 3.

Defendant Montemax now demurs to the first cause of action for negligence and both counts of the premises liability claim arguing that they fail to state sufficient facts to constitute a cause of action against Montemax. Plaintiff opposes the demurrer, and Montemax filed a reply.

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 Montemax has fulfilled this requirement prior to filing the demurrer. (Demurrer Gulino Decl. ¶¶ 4-13.)

CCP § 430.40 provides that “[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”

The Court’s records show that Plaintiff served the summons, complaint and related documents on Montemax by substituted service on May 5, 2022. Montemax then filed the instant demurrer on July 29, 2022. Although the demurrer was untimely filed, Defendant attests that the parties were engaged in extensive meet and confer efforts regarding possibly dismissing Montemax from this action, and the need to file a demurrer if an agreement could not be reached. Pursuant to Jackson v. Doe (2011) 192 Cal.App.4th 742, 749, the court has the discretion to consider an untimely demurrer. In the absence of evidence of any prejudice to Plaintiff, the Court considers Defendant’s demurrer on the merits.[1]

Montemax requests judicial notice be taken of various filings and records in this action. (Demurrer Request for Judicial Notice at pp. 2-3:25-8.) The request is granted as to each item pursuant to Evidence Code § 452(d).

“ ‘The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citation.] The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.’ [Citation.]” (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) Consequently, the “duty to exercise reasonable care can be inferred from the assertion of the fact that defendant owned and managed the property.” (See Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [allegation of defendant's negligent management and maintenance of property].)

Here, although Montemax argues that the complaint is devoid of any facts to suggest that Montemax owed a duty to Plaintiff, the complaint alleges in pertinent part that that while Plaintiff was at defendants’, which would include Montemax who was named as Doe 3, auto body shop, a car lift fell down on Plaintiff’s foot. (Compl. at p. 4.) The defendants, including Montemax, allegedly negligently, carelessly, and recklessly maintained and operated their equipment and place of business as to cause Plaintiff to suffer injuries. (Ibid.) Further, the defendants allegedly acted in a joint venture, employer-employee relationship, or agent-principal relationship, and owned, managed, maintained, and controlled the property where the incident occurred. (Id. at p. 5.)

The complaint, thus, alleges that Montemax owned, controlled, or maintained the subject property, and as such, Montemax had a duty to exercise reasonable care in managing or controlling the property in order to avoid exposing Plaintiff to an unreasonable risk of harm. (Annocki, 232 Cal.App.4th at 37.) Montemax’s duty to exercise reasonable care is inferred from the allegations that Montemax owned, managed, and controlled the subject property. (See Pultz, 184 Cal.App.3d at 1117.) While the complaint’s allegations are stated in broad, general terms, they are sufficient to state a cause of action against Montemax. (See Id. [“The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done.”]; see also Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.)

As to Montemax’s contentions concerning when a landlord owes a duty of care to third persons to protect them from the acts of a tenant, the complaint does not contain any facts to suggest that Montemax is being sued solely as the landlord of the property or for its tenant’s actions. Nor does Montemax submit any judicially noticeable evidence showing that is the situation in this case. Thus, these arguments are improper at the demurrer stage.

Based on the foregoing, Montemax’s demurrer to first cause of action for negligence and count one of the second cause of action for premises liability is overruled.

Civil Code section 846 states that a land owner owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions except: “(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.” (Civ. Code, § 846.)

Three essential elements must be present to raise a property owner's negligent act to the level of willful misconduct, as would not be immunized by recreational use immunity statute: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (Manuel v. Pacific Gas & Elec. Co. (2009) 173 Cal.App.4th 927, 945.)

Here, the complaint contains no factual allegations to support a “willful failure to warn” claim against Montemax per Civil Code § 846. Plaintiff merely checks off the “willful failure to warn” count without providing facts as to the basis for the Montemax’s duty under this claim. This is insufficient to state a claim against Montemax. (People ex rel. Dep't of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 [“Adoption of Official Forms for the most common civil actions has not changed the statutory requirement that the complaint contain 'facts constituting the cause of action.' ”].)

The demurrer is sustained as to count two for willful failure to warn of the premises liability claim.

The burden is on Plaintiff to show in what manner he or 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.)

In this case, Plaintiff requests leave to amend the complaint, but Plaintiff fails to offer any explanation as to how the above defects concerning count two of the premises liability claim can be cured.

Consequently, at this time, Montemax’s demurrer is sustained count two of the premises liability claim without leave to amend. If Plaintiff appears at the hearing and provides specific facts as to how the complaint can be cured to state a claim against Montemax under Civil Code § 846, the Court will be inclined to grant 20 days leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] Defendant also argues that Plaintiff’s Opposition should have been filed and served no later than August 19, 2022, but is late because it was not filed and served until August 22, 2022. However, Defendant acknowledges that late filing has not caused a substantial prejudice to Defendant’s ability to reply. The court is considering the Opposition.