Judge: Carolyn M. Caietti, Case: 37-2023-00015477-CU-PO-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00015477-CU-PO-CTL SALAZAR-ESCOBEDO VS SUNDT CONSTRUCTION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Sundt Construction, Inc.'s Demurrer to Plaintiff's Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

The Court will consider Plaintiff's late opposition. Moving forward, the parties are expected to comply with all laws and rules.

Defendant's unopposed request for judicial notice of: (i) the existence of a contract between Sundt and Standard Drywall, Inc.; and (ii) on April 19, 2022, Plaintiff filed a 'serious and willful complaint against SDI with the State of California Worker's Compensation Appeals Board' is granted. Notice will only be taken to the extent permitted.

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 v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Both causes of action do not state sufficient facts to constitute the causes of action alleged. The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) First, Plaintiff does not dispute the Privette Doctrine applies. (Opp., at p. 8:1-17 [explaining Privette and starting, 'the Plaintiff has established facts sufficient for the standard set'].) Second, there are insufficient facts alleged to show the exceptions to the Privette Doctrine apply. At most, the Complaint alludes to Defendants knowing about hazards but does not allege that Defendants withheld critical information regarding a concealed hazard. (See, Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664; see also, Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 264.) Plaintiff has not expressly requested leave to amend nor articulated facts how they would amend the complaint. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 [the plaintiff has the burden of proving an amendment would cure the legal defect].) Calendar No.: Event ID:  TENTATIVE RULINGS

3080217  41 CASE NUMBER: CASE TITLE:  SALAZAR-ESCOBEDO VS SUNDT CONSTRUCTION INC [IMAGED]  37-2023-00015477-CU-PO-CTL Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Concluding Orders If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant Sundt Construction, Inc is ordered to serve written notice of the Court's final ruling on all appearing parties by April 3, 2024.

The Case Management Conference remains on calendar.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

Calendar No.: Event ID:  TENTATIVE RULINGS

3080217  41