Judge Elaine W. Mandel, Case Number: 23SMCV02067, Date: 2024-01-26 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV02067, Date: 2024-01-26 Tentative Ruling

Case Number: 23SMCV02067 Hearing Date: February 7, 2024 Dept: P

Tentative Ruling

Rahbar v. DW Investments, LLC, et al., Case No.: 23SMCV02067

Hearing Date: February 7, 2024

Defendant Wong’s Demurrer to Plaintiff’s Complaint

Plaintiff alleges injuries due to defendants DW Investments and Wong’s failure to provide safe flooring. Defendant Wong demurs.

Wong files a request for judicial notice of the demurrer and deed to the property. The deed may be judicially noticed under Evid. Code §452(c), as it is a recorded document. The parties met and conferred prior to filing the demurrer per CCP §430.41(a).

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 alleged are assumed to be true. Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.

Wong argues the deed is not in his name, but in the name of corporate defendant DW and argues the claim fails to state facts sufficient to constitute a cause of action.

The complaint states a sole cause of action for negligence. To state a claim for negligence, plaintiff must allege duty of care, breach and damages. McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671. The complaint alleges (at Complaint, ¶ 9) “failing to provide safe flooring in the subject location as to create a dangerous and hazardous condition…”. It is unclear what aspect of the flooring is alleged to be defective or dangerous, nor does plaintiff specify, even generally, what is alleged to have occurred, whether slip and fall, trip and fall, fall through missing flooring or otherwise.

Wong argues the Deed states DW, not he, owns the premises. A defendant may be liable for premises liability even if there is no ownership interest in the premises, so long as there is control. Further, the Deed does not contain sufficient details to demonstrate the plot of land described as “Lots 33 and 35 in Block 58 of the Artesian Tract…” (RJN, Exh. A) is the property at issue. Though the Deed is judicially noticed, it cannot be determined whether this is the deed to the property in question. It may be a question of fact as to the owner, which is not proper on demurrer.

In opposition, plaintiff states “the flooring was uneven and accumulated rainwater. Further the light fixture was broken for an uncertain time…” (Opposition, p. 3:24-25). These facts are not alleged in the complaint, which makes the complaint is insufficient to place Wong on notice of the allegations against him. Doe v. City of Los Angeles (2007) 42 Cal.4^th 531, 549-550.

SUSTAINED with 20 days leave to amend.