Judge: Daniel M. Crowley, Case: 22STCV05096, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCV05096    Hearing Date: October 20, 2022    Dept: 28

Defendants Morrell’s Electric Plating, Inc. and EG Holdings, Inc.’s LLC’s Demurrer with Motion to Strike

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

BACKGROUND

On February 9, 2022, Plaintiffs Nicholas Boskers (“Nicholas”) and Amber Boskers (“Amber”) filed this action against Defendants Southern California Edison Company (“SCE”), Morrell’s Electro Plating, Inc. (“Morrell’s”), EG Holdings, Inc. (“EG”), Compton Steel, Co., Inc. (“Compton”) and Kyung Bok Yoon (“Yoon”) for negligence, premises liability and loss of consortium.

On April 18, 2022, Yoon and Compton filed an answer.

On May 12, 2022, SCE filed an answer and a Cross-Complaint against Cross-Defendants Morrell’s, EG, Compton and Yoon for equitable indemnity, equitable contribution and declaratory relief. On May 24, 2022, Yoon and Compton filed an answer. On July 21, 2022, EG and Morrell filed an answer.

On June 30, 2022, Plaintiffs filed the FAC.

 On July 21, 2022, EG and Morrell filed a Cross-Complaint against Cross-Defendants Moes 1-25 for equitable indemnity, contribution/apportionment of fault, declaratory relief, breach of contract and express indemnity. They later amended the Cross-Complaint to include Cross-Defendant SCE. On August 30, 2022, SCE filed an answer.

On July 29, 2022, SCE filed an answer. On August 1, 2022, Yoon and Compton filed an answer.

On September 14, 2022, Morrell’s and EG (“Moving Defendants”) filed a Demurrer with Motion to Strike to be heard on October 20, 2022. On October 6, 2022, Plaintiff filed an opposition. On October 13, 2022, Moving Defendants filed a reply.

Trial is scheduled for August 9, 2023. 

PARTY’S REQUESTS

Moving Defendants request the Court sustain the demurrer as to all three causes of action for failure to state facts sufficient to constitute a cause of action and being uncertain. Moving Defendants also request the Court strike requests for interest, and allegations that Moving Defendants failed to comply with regulations.

Plaintiff requests the Court overrule the demurrer and deny the motion to strike.

OBJECTIONS:

Plaintiff’s Objections are OVERRULED.

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 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, 1159.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

“Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.” Rowland v. Christian (1968) 69 Cal.2d 108, 119.

Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any order of the court.”

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

DISCUSSION

Judicial Notice

The Court takes judicial notice of the requested documents pursuant to Evidence Code §452 and 453.

Demurrer

Plaintiffs’ complaint alleges that Nicholas was performing work for SCE on behalf of his employer, Herman Weissker Power, Inc. (“HWP”). Nicholas was the foreman of a crew assigned to replace three electrical poles, reframe poles, and reconductor seven spans of SCE wire. Some of the poles were located on the property of Compton and Yoon. Defendants was informed that maintenance was to occur overnight, but Compton failed to permit access to two poles that were behind a large, locked gate. As Nicholas was unable to access the location from the ground, Plaintiff instead began performing work from their bucket truck, parked outside the gate. One of the poles could not be accessed from the street, so Nicholas accessed the second pole from the roof of a building on the adjacent property, owned by EG and Morrell’s. As he walked back to the truck, the roof beneath him gave way and he fell through. Plaintiffs allege that the roof collapsed suddenly because the owners had concealed a skylight cutout by placing a thin panel of corrugated metal over the cutout.

Moving Defendants argue that there are no facts that show it was reasonably foreseeable for Plaintiff to walk on top of the rooftop shed outside the boundaries of the easement after business hours in the middle of the night.

A land possessor generally does not have a duty to warn about a concealed dangerous condition unless said owner is aware a that “a person on the premises is about to come in contact with it,”. (Rowland, 119). The facts allege here do not provide that Moving Defendants were on notice as to the fact Nicholas would come into contact with the dangerous condition. The FAC does not allege that SCE informed Moving Defendants that Nicholas would be on the roof. It does not allege that SCE’s employees or contractors had previously worked on the roof. The roof was outside the area covered by SCE’s easement with Moving Defendants. No facts as provided show that Moving Defendants should have expected Nicholas to walk over the roof, particularly the portion with the skylight. The Court sustains the demurrer to all three causes of action.

Plaintiffs argue that Moving Defendants were on notice that SCE would be performing operations in the area the night of the incident, but still failed to warn potential workers of the unsafe condition. Plaintiffs point to various alleged requirements for guardrails or covers as a basis for negligence and premises liability. However, these do not override the fact that in order to be liable for negligence or premises liability, a party must have a duty to Plaintiff. In this instance, there is no duty to protect or warn unknown third parties of dangerous conditions of property. The cited statutes talk about duties to employees—not to unknown third parties. Plaintiffs have not met their burden.

As the demurrer to the entire FAC is sustained, the Motion to Strike is MOOT.

CONCLUSION

Defendants Morrell’s Electric Plating, Inc. and EG Holdings, Inc.’s LLC’s Demurrer is SUSTAINED, with 30 days leave to amend.

Defendants Morrell’s Electric Plating, Inc. and EG Holdings, Inc.’s Motion to Strike is MOOT.

            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.