Judge: Daniel M. Crowley, Case: 21STCV25335, Date: 2022-10-18 Tentative Ruling

Case Number: 21STCV25335    Hearing Date: October 18, 2022    Dept: 28

Defendant Via De La Paz Homeowner’s Assn’s Demurrer without Motion to Strike

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On July 9, 2021, Plaintiff Michiyo Matsuo (“Plaintiff”) filed this action against Defendant Gloria Ching (“Ching”) for general negligence. Plaintiff later amended the complaint to include Defendant Via De La Paz Homeowner’s Assn (“HOA”).

On October 1, 2021, Ching filed an answer.

On September 14, 2022, HoA filed a Demurrer to be heard on October 18, 2022.

Trial is currently set for November 9, 2023.

PARTY’S REQUESTS

HoA requests the Court sustain the demurrer or, in the alternative, grant judgment on the pleadings.

Plaintiff requests the Court overrule the demurrer or deny the judgment on the pleadings as they are untimely.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  Premises liability relies on the same elements as negligence.

DISCUSSION

Plaintiff’s complaint alleges that while taking an elevator at the HoA’s apartment, Ching entered the elevator with a shopping cart, despite Plaintiff requesting Ching wait until she left the elevator. While entering, Ching struck Plaintiff with her cart.

The facts as alleged do not state a cause of action against HoA—negligence requires duty, breach of duty, causation and damages. There is no clear indication of duty or breach of duty here. Ching was not allegedly acting as an agent of HoA. In fact, Plaintiff alleges that Ching’s actions violated HoA’s policy.

Plaintiff’s opposition notes that Defendant’s demurrer is untimely and the judgment on the pleadings is premature. The Court agrees.  The demurrer is overruled.

CONCLUSION

Defendant Via De La Paz Homeowner’s Assn’s Demurrer without Motion to Strike is OVERRULED; Defendant has 30 days within which to answer. 

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.