Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant The LSMD Fund LA, LLC 

 

RESPONDING PARTY: Plaintiff Linda Ghermezian 

 

BACKGROUND 

This is a trip and fall case.  Plaintiff Linda Ghermezian alleges that she tripped and fell on a sidewalk at or near 8631 W. 3rd Street, West Hollywood, California.  Plaintiff claims Defendants City of Los Angeles, City of West Hollywood, County of Los Angeles, State of California and The LSMD Fund LA LLC owned, managed, maintained and inspected the sidewalk and caused it to be in a “dangerous condition” so as to cause Plaintiff to trip and fall on the sidewalk surface while walking.   

Plaintiff’s initial complaint alleged four claims against all Defendants for (1) liability for dangerous condition of public property pursuant to Gov. Code §835, (2) vicarious liability for the wrongful acts or omission of public entity employees and/or retention of unfit employees pursuant to Gov. Code §815.2, (3) premises liability and (4) negligence.  The Court sustained LSMD’s demurrer to the first and second causes of action without leave to amend and as to the third and fourth causes of action with 30 days’ leave to amend.  Plaintiff then filed a first amended complaint, alleging premises liability and negligence against LSMD.     

This hearing is on LSMD’s demurrer to the first amended complaint (“FAC”).  LSMD argues that (1) the premises liability claim is duplicative of the negligence claim and should be dismissed, and (2) the premises liability and negligence claims are too uncertain as Plaintiff’s allegations fail to specify how LSMD’s actions or inactions brought about Plaintiff’s alleged injuries.  

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.)  

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿  

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 “[b]efore filing a demurrer pursuant to this chapter, the demurring 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 demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  LSMD submits the Declaration of Pamela Hayati which shows the parties conferred by letter but not in person or by telephone.  Accordingly, Plaintiff argues the meet and confer does not satisfy the requirements of § 430.41.  But Plaintiff rebuffed Defendant’s efforts to meet and confer by telephone or in person and cannot now complain that there was no in-person or telephonic meet and confer.  (Defendant’s Ex. B.)  In any event, an inadequate meet and confer cannot be a basis to overrule a demurrer.  (Code Civ. Proc. §430.41(a)(4).) 

 

DISCUSSION 

Premises Liability 

LSMD argues that Plaintiff’s premises liability claim is duplicative of her claim of negligence.  The Court agrees. 

A general demurrer for sufficiency may be sustained against duplicative claims.  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290¿(“a cause of action for breach of governing documents [that] appear[ed] to be duplicative of [a] cause of action for breach of fiduciary duty” is “recognized ... as a basis for sustaining a demurrer”);¿Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501¿(finding¿demurrer was properly sustained without leave to amend as to cause of action that contained allegations of other causes of action and “thus add[ed] nothing to the complaint by way of fact or theory of recovery”); see also¿Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135¿(demurrer should have been sustained as to¿duplicative causes of action).)   

Plaintiff’s premises liability claim contains the identical allegations as her negligence claim.  (Compare FAC ¶¶ 25-33 with ¶¶ 35-42.)  Plaintiff's premises liability claim adds nothing of value to the Complaint because the Complaint does not provide any specific facts to demonstrate the manner in which the premises liability claim differs from Plaintiff's negligence claim.  Both claims allege that Defendants “so negligently, carelessly and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built [and] managed” the sidewalk.  (FAC ¶¶ 26, 36.)   

Where a premises liability claim is duplicative of a negligence claim, it is subject to a demurrer.  (Lakhbir Kaur Dhatt v. Universal Studios, 2023 Cal. Super. LEXIS 17535 at *2-*8 (sustaining demurrer of premises liability claim without leave to amend where claim was duplicative of negligence claim); (Melkonyan v. Carrillo, 2023 Cal. Super. LEXIS 36768 at *4 (sustaining demurrer of premises liability claim without leave to amend where claims contained identical allegations and required the same elements).) 

Accordingly, the Court sustains the demurrer to the premises liability claim, without leave to amend.  Plaintiff already had an opportunity to amend this claim but its amendment has not cured the defects noted above.   

Negligence  

LSMD argues that Plaintiff’s negligence claim is uncertain because it fails to show how Defendant is liable in bringing about Plaintiff’s injuries.  The Court disagrees. 

A demurrer for uncertainty is a special demurrer that is disfavored and strictly construed 

because “ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal. App. 4th 1125, 1135.)  Moreover, special demurrers will be overruled where “the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures… .” (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Furthermore, to sustain a demurrer for uncertainty, the complaint must be so vague or ambiguous that the defendant cannot reasonably respond. (Id. at 614.)   

Here, the Complaint sufficiently explains LSMD’s alleged wrongdoing.  LSMD is alleged to have “so negligently, carelessly, recklessly, owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned certain premises located on at or near 8631 W. 3rd Street, West Hollywood, CA 90048, in a dangerous condition, so as to cause plaintiff to trip and fall on the sidewalk surface, thereby proximately causing the plaintiff to sustain damages as set forth herein.”  (FAC ¶ 36.)   

Unlike her earlier complaint, Plaintiff no longer lumps together all Defendants, which was the basis of the Court’s prior order sustaining the special demurrer to the negligence claim.  Any ambiguities as to what LSMD did or did not do may be clarified through discovery.     

 

 

 

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant’s demurrer.  Defendant’s demurrer to the third cause of action is sustained without leave to amend, and Defendant’s demurrer to the fourth cause of action is overruled.      

IT IS SO ORDERED. 

 

DATED: November 14, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court