Judge Christian R. Gullon, Case Number: 23PSCV03238, Date: 2024-05-30 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV03238, Date: 2024-05-30 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

WC Homes, LLC’s DEMURRER TO PLAINTIFF’S COMPLAINT is SUSTAINED with 30 days leave to amend.

On October 19, 2023, Plaintiff Jerry Lobo filed suit against WC Homes LLC[1] for (1) general negligence and (2) premises liability arising from an incident on 1/26/2021 wherein Plaintiff “entered Defendant’s property”[2] and “fell into the adjacent flood wash.” Plaintiff alleges that Defendant “failed to maintain adequate fencing on the property” such that it created a dangerous condition.[3]

On February 26, 2024, Plaintiff filed POS, indicating that Defendant was served via personal service on 2/26/24.

On May 20, 2024, Defendant filed a ‘REPLY AND NOTICE OF NONOPPOSITION TO DEMURRER TO PLAINTIFF’S COMPLAINT’ indicating that the opposition due on 5/16/24 has not been received.

On May 22, 2024, Defendant filed ‘SUPPLEMENTAL REPLY AND REQUEST TO STRIKE PLAINTIFF’S UNTIMELY OPPOSITION TO DEMURRER TO PLAINTIFF’S COMPLAINT.’

On May 23, 2024, Plaintiff filed a ‘DECLARATION OF HENRY JOHN MATUSEK RE: UNTIMELY FILED OPPOSITION TO DEMURRER.’

Defendant brings forth the demurrer pursuant to Code Civ. Proc., § 430.10(e) and (f) which provides that a demurrer may be asserted when the pleading does not state facts sufficient to constitute a cause of action and the pleading is uncertain (“uncertain” includes ambiguous and unintelligible), respectively. A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.[5] (Code of Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Section 430.41 requires a demurring party to engage in a specified meet and confer process with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer.

Here, WC Homes attempted on several occasions to meet and confer with Plaintiff’s counsel as to the deficiencies in the Complaint. However, Plaintiff’s counsel refused to provide any substantive response. In Opposition, Plaintiff’s counsel states that he did communicate with Defense counsel did “not address our theory of liability and proceeded forward with the instant demurrer.” (Opp. p. 7:10-13.) While the parties may have spoken via phone (on 4/15/24, Robin Decl.), Plaintiff’s opposition does not delineate that any substantive discussions were had about the legal merits of the claims. For any future filing, even if the motion does not require a meet and confer effort, the court requires that the parties meet and confer and that, even if the parties conferred telephonically, that Plaintiff provide a detailed letter, with citation to authority and an analysis, as to why Plaintiff disagrees with Defendant’s position. This letter should be attached to any subsequent motion and/or demurrer filed.

Defendant demurs on the grounds that it does owned, possess or control the public wash. Instead, the WC Homes property is adjacent to the San Bernardino County flood wash which is owned by the County of San Bernardino. (Demurrer p. 3.)

The Court of Appeals in Lorenzen-Hughes v. MacElhenny, Levy & Co. (1994) 24 Cal.App.4th 1684 discussed the requirements for premises liability. (Demurrer p. 5.) “Our high court emphasized that ‘we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land,” instead of whether one's negligence was active or passive.’” (Id. at p. 213, quoting Preston v. Goldman (1986) 42 Cal.3d 108, 119.) Accordingly, “ownership and control [is] a fundamental requirement for ascribing liability.” (Ibid.) “Preston therefore views possession and control as an indispensable requirement on which to predicate liability.” (Lorenzen-Hughes, supra, 24 Cal.App.4th at p. 1688.)

Here, Plaintiff fell into the “adjacent wash,” which tacitly concedes the public property is not owned, controlled, nor possessed by WC Homes. (Demurrer p. 6.) Similarly, there is fencing and assuming, though unclear from the pleading that the fencing was not adequate/properly maintained, the fence at issue is embedded into the concrete wash itself as part of the County of San Bernardino’s property.

To the extent an opposition is filed, it largely recites the legal standard without addressing any of Defendant’s arguments and cases. However, Plaintiff does briefly argue that “California law is well established that a private defendant’s acts on its own land or on adjacent public land, when done for its own benefit can create a dangerous condition for which the private party is liable.” (Opp. p. 5, citing Sexton v. Brooks (1952), 39 Cal. 2d 153, 157; Peters v City and County of San Francisco (1953) 41 Cal.2d 419.)[7] Plaintiff relies upon a photo where in a “semi-tractor backed allo [sic] the way to the adjacent flood control channel to the point of knocking down part of the safety fence on the wall of the food control wash.” (Opp. p. 7.)

In reply, Defendant does not address/refute the case law. But Defendant points out that the photo that was allegedly taken on April 2022, which is after the alleged incident, suggesting it is an irrelevant argument. (Reply p. 5.)[8]

Notwithstanding the foregoing, both parties are making arguments beyond the four corner of the pleadings or even those subject to judicial notice. (A photo is not subject to judicial notice and Defendant’s argument that WC Homes’ property was vacant land at the time of the alleged incident in 2021 is not supported by a document that is subject to judicial notice.)

Therefore, as the complaint does not patently fail as a matter of law and the pleading could use additional facts and clarity, the court sustains the demurrer with leave to amend.

[1] Plaintiff did not sue any Doe defendants.

[2] It appears Plaintiff trespassed onto the property (Demurrer p. 2:24-25) and Plaintiff’s opposition does not maintain otherwise.

[3] Aerial and site photographs of the properties and wash is attached as Exhibit 4 to the Declaration of Andre C. Robin. (See Robin Decl., pp. 23-25 of 25 of PDF.)

[4] Plaintiff’s Counsel explains the opposition was not timely filed due a clerical error on part of his staff. In fact, the opposition is indeed dated to 3/13/24, showing that the opposition would have been timely filed but for the clerical error. Plaintiff’s Counsel did not learn of the non-filing because he left Los Angeles on 3/14/24 to tend to a family emergency. With that, the court does not strike the opposition.

[5] The court grants the RJN (includes grand deeds).

[6] As the negligence and premises liability allegations are identical and the liability of landowners is governed by general negligence principals (Demurrer p. 7, citing Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407), the court will provide a consolidated analysis. (See also Demurrer p. 7, citing Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co. (1970) 10 Cal.App.3d 206, 215 [Where only one set of operative facts is pled, based on the same primary right and same primary duty, courts properly hold that the additional ‘causes of action’ are in reality only additional counts based on the same obligation and thus the same cause of action.].)

[7] Sexton addressed the exception to the general rule that in the absence of statute a landowner is under no duty to maintain in a safe condition a public street abutting upon his property. “There is, however, an exception to this rule, and plaintiff claims that the evidence brings this case within that exception. It has been held that an abutting owner is liable for the condition of portions of the public sidewalk which he has altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed.” (Sexton, supra, 39 Cal.2d at p. 157.) Peters similarly discussed the law with respect to the liability of a property owner for the condition of the sidewalk adjoining his property. (Peters, supra, 41 Cal.2d at p. 423.) Thus, both cases focus on the duty to maintain portions of a sidewalk which have been altered for the benefit of the property runs with the land. Here, however, a sidewalk is not at issue (and sidewalks are intended to be used by pedestrians and the public) such that it is unclear whether the cases are instructive.

[8] Defendant does not appear to dispute that the semi-truck is or was owned by Defendant.