Judge: Frank M. Tavelman, Case: 23BBCV01652, Date: 2024-04-05 Tentative Ruling

Case Number: 23BBCV01652    Hearing Date: April 5, 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: 

Paulette Stokes (Stokes) brings this action against Empire Properties, LLC, Radford Residential, LLC, and Apartment Management Consultants, LLC (Moving Defendants). Stokes alleges that she and her personal property were injured in a fire at her apartment complex on August 27, 2020. Plaintiff further alleges that Moving Defendants’ negligence was a contributing factor to the fire.

Stokes’ Complaint contains three causes of action for (1) Negligence, (2) Premises Liability, and (3) Negligent Infliction of Emotional Distress.

Moving Defendants now demur to Stokes’ Complaint. Moving Defendants first demur generally to the entire Complaint, arguing that it is identical to another pending action. Moving Defendants also demur to each cause of action arguing that they are barred by the applicable statute of limitations. Stokes opposes the demurrer and Moving Defendants reply.

ANALYSIS:

I.            LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.            MERITS

Meet and Confer

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Sakr Decl. ¶ 5.)

General Demurrer

Moving Defendants first argue that a general demurrer to Stokes’ Complaint is appropriate on grounds that another identical action exists which precludes this one. Moving Defendants contend this other action, Jose Lemus, et al. v. Empire Properties, et al. LASC Case No. 21STCV09154, features Stokes as a plaintiff making identical claims. (Dem. p. 6.) Moving Defendants argue the Lemus matter consists of the same three causes of action resulting from the same August 27, 2020 fire. Moving Defendants further argue that claimed damages are identical in both cases. (Id.)

Stokes argues that she is no longer a plaintiff in the Lemus action. Stokes explains that she was originally a plaintiff in the Lemus action but was removed via the filing of an amended complaint. (Opp. p. 3.)    Stokes thereafter hired counsel to represent her claims against Moving Defendants separately. (Id.)

“The pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action. The defendant may assert the pending action as a bar either by demurrer, or where fact issues must be resolved, by answer. In either case, where the court determines there is another action pending raising substantially the same issues between the same parties, it is to enter the interlocutory judgment specified in Code of Civil Procedure section 597.” (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.)

“A demurrer raising this objection to a second action between the same parties is strictly limited so that the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856.)

As previously stated, upon Demurrer the Court is limited to considerations of the pleadings themselves and facts which are subject to judicial notice. The Court notes that neither party has requested judicial notice for the purposes of this demurrer. Instead, Moving Defendants attach exhibits and declaration of their counsel in support of their position. These submissions are outside the scope of a demurrer.

Regardless, the Court possesses the power to judicially notice the records of any court of the State of California. (Evid. Code § 452(d).) As such, the pleadings filed in the Lemus matter are appropriate subjects for judicial notice. The Court takes judicial notice of the following:

·         The Complaint in the Lemus matter filed March 9, 2021.

·         The First Amended Complaint in the Lemus matter filed April 23, 2021.

A review of these documents reveals that while Stokes was a plaintiff in the Complaint, she is afterward listed as a defendant in the First Amended Complaint (FAC). The Court notes that while the Complaint is attached to Moving Defendants papers, the FAC is absent. Regardless of this oversight, it is clear from the Court’s review of the Lemus file that the FAC is the operative pleading in the matter. As such, from the face of the Complaint in this matter and judicially noticeable documents, it appears the parties are not identical between the two actions.

Lastly, the Court acknowledges but does not consider, Moving Defendants submission of deposition testimony in the Lemus action. Moving Defendants offer a statement made by counsel Terrence Butler during Stokes’ February 7, 2024 deposition. Moving Defendants argue that Butler confirmed Stokes is a plaintiff in the Lemus action. (Reply. Exh. 1.) The Court reiterates that this exhibit is outside the scope of a demurrer as it is not judicially noticed. Further, the Court finds Butler’s opinion of whether Stokes is a plaintiff is unpersuasive to her status as a plaintiff by virtue of the actual pleadings of the case.

Accordingly, the general demurrer to the entirety of the Complaint on these grounds is OVERRULED.

Statute of Limitations

Moving Defendants also demurer to each cause of action on grounds that they are barred by the applicable statute of limitations. Moving Defendants argue that each cause of action includes time-bared claims of personal injury and that each is therefore subject to demurrer. Stokes concedes that her claims of personal injury, which are present in each cause of action, are barred as outside the two-year statute of limitations. (See C.C.P. § 335.1) Stokes argues that this should not be grounds for demurrer to the causes of action for Negligence and Premises Liability because they also allege damage to personal property, which is governed by a three-year statute of limitation. (See C.C.P. § 338.)

The Court finds Moving Defendants’ arguments unpersuasive. While a cause of action can be subject to demurrer for being outside the statute of limitations, personal injury claims are only a portion of Stokes’ causes of action for Negligence and Premises Liability. “A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) Here, Moving Parties request a demurrer be sustained as to both the Negligence and Premises Liability causes of action merely because they include claims of time-barred damages. A review of the Complaint shows the presence of other damages claims, namely those of damage to Stokes’ personal property. As such Moving Defendants’ demurrer is improperly directed to only part of the Negligence and Premises Liability causes of action. To the extent that Moving Parties wish the claims for personal injury to be removed from the Complaint, it appears the appropriate vehicle would be a motion to strike. (See C.C.P. § 437.)

Accordingly, the demurrer to the first and second causes of action is OVERRULED.

As concerns the third cause of action for Negligent Infliction of Emotional Distress, Stokes concedes this entire cause of action is barred by the applicable statute of limitations. (Opp. p. 2 ¶ 4.)

Accordingly, the demurrer to the third cause of action is SUSTAINED without 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 

Empire Properties, LLC, Radford Residential, LLC, and Apartment Management Consultants, LLC’s Demurrer came on regularly for hearing on April 15, 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: 

THE GENERAL DEMURRER TO THE ENTIRE COMPLAINT IS OVERRULED.

THE DEMURRER TO THE FIRST AND SECOND CAUSES OF ACTION IS OVERRULED.

THE DEMURER TO THE THIRD CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE CASE MANAGEMENT CONFERENCE SCHEDULED FOR APRIL 5, 2024 IS CONTINUED TO AUGUST 15, 2024 AT 9:00 AM.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANTS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  April 5, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles