Judge Christian R. Gullon, Case Number: 23PSCV03238, Date: 2025-02-20 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV03238, Date: 2025-02-20 Tentative Ruling

WC Homes, LLC’s DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT is CONTINUED for supplemental briefing; the court requests the parties to brief the Rowland factors.

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 and fell into the adjacent flood wash. Plaintiff alleges that Defendant damaged and knocked down part of the safety fence protecting people from injury in the adjacent wash.

On May 3, 2024, Defendant a demurrer, which the court on May 30, 2024 sustained with 30 days leave to amend.

On June 28, 2024, Plaintiff filed his FAC for general negligence and premises liability.[2]

On August 20, 2024, Defendant filed a demurrer to the FAC, which the court on 9/23/24 sustained with leave to amend.

Defendant (again) 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. (Code of Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendant again demurs on the grounds that it does not own control the public wash. As the SAC is largely similar to the FAC, the court will rely upon and reference its 9/23/24 ruling.

Previously, the court held that Plaintiff did not allege sufficient facts of Defendant’s purported control. The court reached that conclusion by focusing on Alcaraz v. Vece (1997) 14 Cal.4th 1149, the predominant case relied upon by Plaintiff in opposition.[3] As this court stated in its ruling, Alcaraz stands for the proposition that control can be shown by some affirmative action that affects the adjoining landowner's ability to control their property and that said affirmative action amounts to a notorious and open public display of control over adjacent property. (9/23/24 Ruling, citing Alacaraz, supra, 14 Cal.4th at p. 1167.)

The FAC, however, contained no allegations that Defendant controlled the wash. And Plaintiff appears to concede this much based on his discovery responses. (See RJN,[4] Ex. 8, RFA No. 8 [“Admit that Propounding Party did not control the adjacent flood wash identified in YOUR COMPLAINT at the time of the INCIDENT”]; Response: “Admit to the extent Plaintiff did not have explicit permission.”].)[5] While the conclusion may be different if the injury happened in the area controlled by Defendant (i.e., the County’s area that Defendant is allegedly using for storage), here, the injury happened in an area controlled by the County. And as the way, based upon the presented authority, to impose liability upon a landowner for an off-site injury is if the landowner’s property was maintained in such a manner to expose persons to an unreasonable risk of injury offsite, then here, premises liability is not a viable COA. (See e.g., Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1156, 1159; see also Barnes v. Black (1999) 71 Cal.App.4th 1473, 1479 [“[T]he duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite.”].)[6]

To the extent that Plaintiff attempts to assert liability against Defendant based upon Defendant’s economic gain of use of the County’s land (Opp. p. 6:11-16), as stated in the previous ruling, Plaintiff misstates the law. The Alcarez court expressly rejected notions that liability for injuries on adjacent property should depend upon whether the defendant derives a commercial benefit from that property. (Id. at p. 1165-1166; see also p. 1166 [“[N]o case [] in which a defendant that exercised control over property on which an injury occurred was found not liable simply because the defendant derived no commercial benefit from that property.”]; see also dis. opn. of Brown, J., at p. 1193 [“The majority's response to these reasoned analyses is simply to sweep aside these limiting principles as “dicta,” and to disapprove the language.”]; see also dis. Opn. of Kennard, J. p. 1174.].)

To the extent that Plaintiff attempts to impose liability upon Defendant for Defendant’s own failure to maintain its property[7] (see e.g., Opp. p. 6:23-25 [“Plaintiff plead the defendant owned and/or controlled its own land with inadequate security, lighting or fencing, and further removed its own fence separating the two parcels…”]), as stated before, the court is bound by the four corners of the operative pleading. Here, the SAC contains no allegations as to lighting and security. (While the FAC may have made such an allegation, the FAC has been superseded by the SAC.)

Notwithstanding, these facts appear to present a novel question without much guidance from California authority—i.e., whether a private landowner owes a duty to maintain public property if the private landowner has altered something on the public property that caused an injury on the public property. As stated in Isaacs v. Huntington Valley Memorial Hospital (1985) 38 Cal.3d 112, which Defendant relies upon, “[w]hether such a duty exists is a question of law to be determined on a case-by-case basis.” (Id. at p. 124.) And in considering whether one owes a duty of care, the Rowland factors must be weighed. (Id. at pp. 124-125, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113.) Here, however, neither party has addressed the Rowland factors.

Based on the foregoing, the demurrer is continued for supplemental briefing for the parties to address the Rowland factors.

[1] Plaintiff did not sue any Doe defendants.

[2] 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.) “Premises liability ‘is grounded in the possession of the premises and the attendant right to control and manage the premises’ accordingly, ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’” (Ibid.) (See also Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725-726 [“The existing standard for premises liability, based on ownership, possession or control, provides predictability and reasonably clear limits. Such limits on premises liability are also consistent with the general policy underlying much of tort law.”]; see also Preston v. Goldman (1986) 42 Cal.3d 108, 119 [“ownership and control [is] a fundamental requirement for ascribing liability.”].)

[3] Defendant argues that both possession and control are required for premises liability. However, while the court acknowledged Preston and Lorenzen-Hughes as controlling authority in its 5/30/24 ruling, Plaintiff thereafter cited to Alcaraz, which is a more recent California Supreme Court decision than Preston. While those cases have not been overturned, as noted by Plaintiff in opposition, Preston and Lorenzen-Hughes involved the liability of a former owner for injuries due to latent defects such that Alcaraz is more instructive.

[4] The unopposed RJN is granted pursuant to Evidence Code sections 451 - 454 and California Rules of Court rules 3.1113(1) and 3.1306(1).

[5] (See Demurrer pp. 5-6, citing Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605 [“[A] pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. In this regard the court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff, and the plaintiff's answers to interrogatories, [] as well as to the plaintiff's response to request for admissions.”].)

[6] In Barnes, which was cited by Plaintiff, a child was killed by an automobile when the tricycle he was riding veered off the private sidewalk of the apartment complex and rolled down the steep driveway adjacent to the sidewalk that led a busy public street. The defendant/apartment complex argued it did not owe a duty of care to protect its tenants from an unreasonable risk of injury off the premises on a public street over which it has no control. (Id. at p. 1478.) In rejecting the argument, the Barnes court, analyzing the Rowland factors, focused on the evidence that the injury was a result of his child being ejected from the defendant’s premises by its dangerous configuration. (Id. at p. 1480.)

[7] It is not dispositive that the incident occurred off site. “We have never held that the physical or spatial boundaries of a property define the scope of a landowner's liability. The Courts of Appeal have repeatedly concluded that ‘ “[a] landowner's duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner.” ’ [Citations.] ‘Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite.’” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1156, 1159.)