Judge: David B. Gelfound, Case: 23CHCV02674, Date: 2025-01-24 Tentative Ruling

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Case Number: 23CHCV02674    Hearing Date: January 24, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER

Motion filed: 10/21/24

MOVING PARTY: Defendant CalMat Co. d/b/a Vulcan Materials Co. (sued as CalMat Co.)

RESPONDING PARTY: Plaintiff Maria Pizano

NOTICE: OK.

RELIEF REQUESTED: An order sustaining Defendant CalMat Co. d/b/a Vulcan Materials Co.’s Demurrer to Plaintiff’s Complaint.

TENTATIVE RULING: The Demurrer is SUSTAINED WITH LEAVE TO AMEND.

BACKGROUND

This action arises from alleged personal injuries sustained by Plaintiff as a result of a fall on the sidewalk and an open tree well, located at or near 11300 block of Tuxford St., Sun Valley, CA 91352 (“Premises”).

On September 5, 2023, Plaintiff Maria Pizano (“Plaintiff” or “Pizano”) filed a Complaint against Defendants City of Los Angeles, County of Los Angeles, Does 1 through 100, and Roe Corporations 1 through 20. The Complaint alleges the following three causes of action: (1) Civil Code Section 3333 For Personal Injuries against Public Entities and Employees (Gov. Code §§ 830, 835, 840.2, 840.4) based on Dangerous Condition of Public Property, (2) Negligence, (3) Premises Liability. Subsequently, on January 19, 2024, Defendant City of Los Angeles filed its Answer to the Complaint and a Cross-Complaint against Roes 1 to 20, alleging: (1) Indemnification, (2) Apportionment of Fault, and (3) Declaratory Relief.

On September 5, 2024, Plaintiff filed an Amendment to Complaint, substituting Defendant CalMat Co. (“CalMat”) in place of Doe 51.

On October 21, 2024, Defendant CalMat filed the instant Demurrer (the “Demurrer”). Subsequently, Plaintiff filed her Opposition to the Demurrer on January 9, 2025, and CalMat submitted its Reply on January 16, 2025.

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against them. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721 (Semole.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

A.    Request for Judicial Notice

Defendant CalMat requests the Court take judicial notice of the following matters (incorporating the Notice of Errata filed by CalMat on January 16, 2025):

1.      Request for Judicial Notice (“RJN”) No. 1: the address of CalMat’s Sun Valley facilities as 11401 West Tuxford Street, Sun Valley, California 91352. (RJN Ex. “1.”)

2.      RJN No. 2: the location of CalMat’s Sun Valley facility in congruence to where Plaintiff claims the alleged incident occurred at 11300 block of Tuxford Street, Sun Valley. (RJN Ex. “2.”)

CalMat asserts that its request for judicial notice is made pursuant to Evidence Code section 451, subdivision (f). (RJN at p. 2.)

Evidence Code section 451, provides, in pertinent part, that “[j]udicial notice shall be taken of the following: ... (f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.” (Evid. Code, § 451, subd. (f).)

The Court observes that a business entity’s address does not typically qualify as a fact of “generalized knowledge” under Evidence Code section 451, subdivision (f). While a company’s address may be publicly available or verifiable through certain sources, it is neither universally known nor indisputable to the extent required under this provision.

In support of its request, CalMat presents evidence, in the form of a copy of a webpage from its company’s website and a Google map showing the proximity of two addresses. However, these materials fail to constitute official or authoritative documents. Moreover, they do not meet the statutory requirement of being “so universally known that they cannot reasonably be the subject of dispute.”

Accordingly, the Court finds that Evidence Code section 451, subdivision (f) is inapplicable to the facts presented in this request.

The Court therefore DENIES CalMat’s request for judicial notice.

B.     Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) However, failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

The Court finds that CalMat has fulfilled the meet and confer requirements. (Byrge Decl. ¶ 3.)

C.    Second Cause of Action- Negligence

            The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1106.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 (Berkley).) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

A negligence claim must be based on a duty owed by defendant to plaintiff. Absent such a duty, there is no liability, no matter how easily the injury might have been prevented. (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 [threshold element is existence of duty to use due care toward another].) The two broad categories of duty are: (1) duty to use care in ordinary activities (Civil Code §1714); and (2) duty to act affirmatively to prevent harm. The existence and scope of duty are questions of law for the court. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614 [duty under “Good Samaritan” rule].)

            CalMat argues that the allegations in the Complaint fail to state a fundamental element of a negligence claim – the existence of a legal duty owed by CalMat to Plaintiff. (Dem. at p. 5.) CalMat asserts that the Complaint lacks specific factual allegations to support the existence of a duty of care. CalMat claims that it operated a facility at 11401 West Tuxford Street, approximately 0.4 miles and an eight-minute walk from where the alleged incident took place. (Ibid.)

            In the Opposition, Plaintiff contends that a property owner has a duty to safely maintain a premises, including an adjacent sidewalk, if the party exercises control over the area where the incident occurred. (Opp’n. at p. 6.) Plaintiff further argues that the Complaint has sufficiently alleged ultimate fact to establish the duty element.

The Complaint alleges the following: “DEFENDANTS, and each of them, were the possessors, controllers, managers, designers, maintainers, inspectors, supervisors, and/or owners of the PREMISES and/or the immediate area, including the sidewalk and open tree well that did not contain a tree, located at/near 11300 block of Tuxford St., Sun Valley, CA 91352 ("PREMISES").” (Compl. ¶ 5.) “DEFENDANTS, and each of them, failed to inspect, maintain, repair the damaged/uneven/sunken/tree less open tree well on the sidewalk located at/near the PREMISES at/near where PLAINTIFF was injured.” (Id. ¶ 6.) “At all times herein mentioned DOES 51 through 100, Inclusive and ROE Corporations 1 through, Inclusive, their employees, heirs, and assigns, and each of them negligently designed, owned, installed, maintained, controlled, and constructed the PREMISES, including the damaged/uneven/sunken/tree less open tree well on the sidewalk, at/near the PREMISES, that fell below reasonable design guidelines and practices.” (Id. ¶ 45.) “As owners, controllers, installers or designers of the PREMISES and the area immediately surrounding the PREMISES, including the damaged/uneven/sunken/tree less open tree well on the sidewalk and/or the tree maintenance, placement, selection at/near the PREMISES, DOES 51 through 100, Inclusive and ROE Corporations 1 through 20, Inclusive, owed PLAINTIFF a duty of reasonable care, which included but was not limited to, ensuring that the PREMISES was designed, manufactured, constructed, maintained, controlled, or installed in a reasonably safe condition and to diligently inspect the PREMISES to discover and correct any defects. These Defendants also owed a duty to warn of potential hazards they created when constructing/owning/controlling the PREMISES and surrounding structures around the PREMISES.” (Id. ¶ 47.)

            The Court finds that the above allegations fail to constitute properly pleaded ultimate facts sufficient to survive a demurrer. While the Complaint repeatedly asserts that Defendants, and each of them, “owned,” “controlled,” “maintained,” “designed,” or otherwise exercised authority over the Premises, such assertions are conclusory and lack the requisite factual specificity. (Berkley, supra, 152 Cal.App.4th at p. 527.)

            The “well-pleaded allegations” of a complaint refer to “all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267.) However, distinguishing “[u]ltimate facts” from “evidentiary” facts and “legal conclusion[s]” can be difficult. (Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, internal citations omitted, see Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 473 [“distinction between conclusions of law and ultimate facts is not at all clear”].)

Despite these challenges, courts and litigants are guided by the principle that a plaintiff is required to set forth the essential facts with “particularity sufficient to acquaint a defendant with the nature, source and extent of [the plaintiff's] cause of action.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) Importantly, “[a] complaint will be upheld ‘so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.’ [Citation.]” (Id. at pp. 549-550.)

Here, the Complaint merely alleges that all defendants “... maintained, controlled ...” the Premises, without providing any supporting facts. The Complaint fails to allege what CalMat’s conduct contributed to the dangerous condition, nor does it identify any specific acts or omissions negligently performed by CalMat. These general and conclusory allegations are insufficient to give CalMat notice of the issues adequate to enable the preparation of its defense.

The Court finds that, absent additional factual allegations, the Complaint fails to adequately plead the element of duty and improperly relies on conclusions of law or fact.

            Accordingly, the Court SUSTAINS the Demurrer as to the Second Cause of Action for Negligence against Defendant CalMat.

D.    Third Cause of Action – Premises Liability

In most instances, where there is no control over the premises, there is no duty to exercise reasonable care to prevent injury. (Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711 (Hamilton).) Generally, “a landowner has no right to control and manage premises owned by another.” (Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1147.) Thus, as a general rule, a landowner has no duty to prevent injury on adjacent property. (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386 [no duty to customer struck by motorist on adjacent public street]; Hamilton, supra, 6 Cal.App.4th at p. 1714 [owner of parking lot not liable to customer injured by sign which fell from adjacent building].)

Similarly, an adjacent landowner has no duty to warn of dangers outside of his or her property if the owner did not create the danger. (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487–488 [hotel not liable for failure to warn patron who was killed crossing adjacent street to use parking lot frequented by guests].)

While the general rule imposes no duty for injuries on adjacent property, exceptions exist where a landowner’s conduct or maintenance of their own property creates or contributes to the risk of injury offsite. In Barnes v. Black (1999) 71 Cal.App.4th 1473, the Court of Appeal observed 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. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur offsite if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite.” (Id. at pp. 1478-79.)

            Here, the Complaint alleges that “PLAINTIFF was harmed because of the manner in which DOES 51 through 100, Inclusive and ROE Corporations 1 through 20, Inclusive and each of them, owned/leased/occupied/controlled the PREMISES.” (Compl. ¶ 55.) “DOES 51 through 100, Inclusive and ROE Corporations I through 20, Inclusive and each of them, had a duty to use reasonable care to keep, operate, control, own, and maintain the open tree well on the sidewalk at/near the PREMISES.” (Id. ¶ 56.) “At all times relevant herein, DOES 51 through 100, Inclusive and ROE Corporations I through 20, Inclusive and each of them, were negligent in their use or maintenance of the open tree well on the sidewalk at/near the PREMISES.” (Id. ¶ 57.)

            These allegations are substantially the same as those asserted under the First Cause of Action, which the Court has previously determined to constitute conclusions of law or fact rather than ultimate facts establishing a duty of care owed by CalMat. As such, the Court does not admit these conclusions as true when reviewing a demurrer.

Furthermore, the Complaint fails to allege specific facts demonstrating that CalMat’s ownership or maintenance of its own property at 11401 West Tuxford Street created or contributed to the alleged dangerous condition of the Premises – specifically, the sidewalk and open tree well located at/near 11300 block of Tuxford St., Sun Valley, CA 91352. The Complaint is devoid of factual allegations sufficient to trigger a duty of care that would fall within the recognized exception to the general rule of no duty for conditions on adjacent or non-owned property.

Accordingly, the Court finds that Plaintiff has not sufficiently stated the element of duty against Defendant CalMat, either based on its possession and control of the Premises or on any action or omissions that may fall within the recognized exceptions.

Therefore, the Court SUSTAINS the Demurrer as to the Third Cause of Action for Premises Negligence.

E.     Leave to Amend

Generally, leave to amend is available when “the defect raised by a motion to strike or by demurrer is reasonably capable of cure . . . to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 304.)

            In accordance with this principle, and finding that the Complaint does not demonstrate on its face that it is incapable of amendment, the Court GRANTS Plaintiff 30 days Leave to Amend.

CONCLUSION

Defendant CalMat Co. d/b/a Vulcan Materials Co.’s Demurrer to the Complaint is SUSTAINED.

Plaintiff Maria Pizano is GRANTED 30 days LEAVE TO AMEND.

Moving party to give notice.