Judge: Frank M. Tavelman, Case: 22BBCV00830, Date: 2024-02-23 Tentative Ruling

Case Number: 22BBCV00830    Hearing Date: February 23, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS & ANALYSIS:  

On October, 24, 2022, Amanda Chappell (Plaintiff) filed this action against Public Storage and Does 1-100 (collectively Defendants). Plaintiff alleges she was injured by an elevator while at a facility owned by Public Storage. Plaintiff’s Complaint contained two causes of action for (1) General Negligence and (2) Premises Liability. Both causes of action in the Complaint were stated against all Defendants. On August 15, 2023, Plaintiff amended her Complaint identifying Kone, Inc. (Kone) as a Doe Defendant.

On November 27, 2023, Kone filed a demurrer to the second cause of action for Premises Liability. Plaintiff filed an opposition to the motion and Kone replied. On February 14, 2024, Plaintiff attempted to file a First Amended Complaint (FAC), however it was rejected as Public Storage had already filed an Answer to the Complaint.

Kone argues that Plaintiff’s cause of action states insufficient facts as to Kone’s status as the owner of the property upon which Plaintiff was injured. “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.5th 1132, 1158, [quotation marks omitted].)

In her opposition, Plaintiff agrees that the cause of action for Premises Liability is improperly stated against Kone. Plaintiff instead seeks leave of the Court to amend her Complaint to remove her Premises Liability cause of action as to Kone and to add causes of action for Gross Negligence (as to Public Storage) and Common Carrier Liability (as to Kone). Plaintiff attaches a copy of her proposed FAC containing these causes of action.

In their reply, Kone argues that Plaintiff’s FAC improperly pleads its cause of action for Common Carrier Liability. Kone states that this cause of action cannot be stated against it because Kone did not hold itself out to the public to transport goods or persons from place to place.

The Court finds the arguments regarding common carrier liability are outside the scope of this demurrer. The stated grounds for Kone’s demurrer are that the cause of action from Premises Liability contains insufficient allegations and the Court’s consideration is limited to those grounds. Plaintiff agrees this cause of action should not stand against Kone. Given the arguments of the parties concerning the cause of action for Premises Liability, the Court finds Kone’s demurrer should be sustained without leave to amend.

Accordingly, Kone’s demurrer to the second cause of action for Premises Liability is SUSTAINED without leave to amend.

To the extent the parties believe the Court should adjudicate the addition of the new causes of action, such a decision requires a noticed motion for leave to amend. The Court notes that Plaintiff has reserved the date of March 15, 2023 for the hearing of such a motion, though no motion has been filed as of yet. To adjudicate the addition of the causes of action at this stage would be improper, as Plaintiff has had no opportunity to respond to the authority and points raised in Kone’s reply to the demurrer. Additionally, one of the new causes of action is directed at Public Storage, who have had no opportunity to brief the issue.

The Court strongly recommends the parties meet and confer prior to the filing of the motion for leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Kone, Inc.’s Demurrer came on regularly for hearing on February 23, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

KONE, INC.’S DEMURRER TO THE SECOND CAUSE OF ACTION FOR PREMISES LIABILITY IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE HEARING ON MOTION FOR LEAVE TO AMEND SET FOR MARCH 15, 2024 REMAINS.

UNLESS ALL PARTIES WAIVE NOTICE, KONE, INC. TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  February 23, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles