Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

Plaintiff Lorenzo Cerullo was entering an elevator at a CVS pharmacy when he was crushed by the elevator doors.  He claims he sustained severe injuries to his body, requiring ongoing medical treatment.   

The operative complaint includes a single claim for premises liability against Defendants CVS Pharmacy Inc., Stone Haven Partners, L.P., and Kone Inc. 

This hearing is on Defendant Kone Inc.’s demurrer to the complaint.  Kone argues it is solely a maintenance and repair company and cannot be liable for premises liability because it is not a property owner, occupier or lessor, and it does not own or control the subject elevator.   

 

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “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(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Defendant submits the Supplemental Declaration of Timothy Noon, which shows the parties complied with the meet and confer requirements of §430.41.   

DISCUSSION 

Kone argues that Plaintiff cannot state a premises liability claim because as a third party maintenance provider, it does not own or control the elevator.  The Court disagrees. 

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation and damages.  (Castellon v U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.  (Kesner v. Superior Court (2016) 1 Cal.4th 1132, 1158.)  Ordinarily, “a defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control.”  (Isaacs v. Huntington Memorial Hospital¿(1985) 38 Cal. 3d 112, 134.)  

Kone argues it is not the owner of the elevator.  But this “fact” is not on the face of the pleading nor is it judicially noticeable.  Even assuming Kone is not the owner of the elevator, there is still the issue of whether it had sufficient control of the elevator as a maintenance provider.  Kone argues it does not.  It can only propose repairs; the owner must still approve all proposals.  These facts, however, do not appear on the face of the pleading nor are they judicially noticeable.  They are arguments better addressed in a motion to summary judgment, rather than a demurrer.   

Kone’s authority, Vandagriff v. J.C. Penney Co. (1964) 228 Cal.App.2d 579, 583, is unavailing.  Vandagriff did not involve a demurrer.  It was an appeal from an order granting a new trial, after the court granted a judgment for nonsuit.  There, Westinghouse Electric Corporation was the installer of an escalator with a maintenance and repair contract with J.C. Penney.  Crucially, the parties there, unlike here, stipulated that JC Penney was in exclusive control of the operation of the escalator.  (Id.)  Accordingly, the court concluded the obligation of an elevator or escalator maintenance contractor differs from that of the owner and is based on the theory that the maintenance operator may be liable for ordinary negligence (as opposed to premises liability).  (Id.)   

CONCLUSION 

Based on the foregoing, the Court OVERRULES the demurrer.   

 

DATED:  January 8, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court