Judge: Cherol J. Nellon, Case: 24STCV25568, Date: 2025-02-26 Tentative Ruling

Case Number: 24STCV25568    Hearing Date: February 26, 2025    Dept: 14

#7

Case Background

This is an action for negligence and premises liability. Plaintiff alleges she suffered damages after Defendants, her landlords, failed to remediate mold in the property where she lived.

On October 2, 2024, Plaintiff Candice Birns filed her Complaint against Defendant SCSH Management, Inc.

On December 13, 2024, Plaintiff filed a Doe Amendment naming the Ellsworth Multifamily Income Partners, LLC.

On January 22, 2025, Defendants filed a demurrer.

On February 13, 2025, Plaintiff filed an opposition.

On February 19, 2025, Defendants filed a reply.

Instant Pleading

Defendants demur to the causes of action for willful failure to warn and premises liability.

Decision

The demurrer to the second cause of action for willful failure to warn is SUSTAINED without leave to amend.

The demurrer is OVERRULED as to the cause of action for premises liability.

Defendants must file an Answer within 20 days of this order.

Discussion

1.     Willful Failure to Warn

Defendants demur to the cause of action for willful failure to warn under Civ. Code, section 846. Plaintiff represents she agreed to retract and strike this cause of action. However, Plaintiff never filed an amended pleading. Plaintiff concedes that Civ. Code, section 846 only pertains to recreational activities and is not relevant to this action. Therefore, the demurrer is SUSTAINED as to the second cause of action for willful failure to warn without leave to amend.

2.     Premises Liability

Defendant demurs to the second cause of action for premises liability on the grounds that it is duplicative of the first cause of action for general negligence. While a plaintiff may not ultimately obtain double recovery, he may allege recovery through alternative, and even contradictory, causes of action at the pleadings stage. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565 [“A plaintiff may plead cumulative or inconsistent causes of action”].) Here, Plaintiff is permitted to allege cumulative causes of action. The demurrer is OVERRULED as to the cause of action for premises liability.

Conclusion

The demurrer to the second cause of action for willful failure to warn is SUSTAINED without leave to amend.

The demurrer is OVERRULED as to the cause of action for premises liability.

Defendants must file an Answer within 20 days of this order.