Judge: Frank M. Tavelman, Case: 24BBCV00188, Date: 2024-04-19 Tentative Ruling

Case Number: 24BBCV00188    Hearing Date: April 19, 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.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify 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 argument is received.  

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

ALLEGATIONS: 

Lilit Simonyan (Lilit), Hilda Alaverdyan (Hilda), and A.T., a minor by and through her guardian ad litem Armen Tatosyan (A.T.) (collectively Plaintiffs) bring this action against Bestar, Inc., Wayfair, Inc., Zach Krasman, Compass, Inc., Matanel Maman, and Irene Maman (collectively Defendants).

Plaintiffs allege that Lilit’s father, Saro Simonyan (Decedent), visited a home Lilit had recently purchased with the intent to remove a murphy bed which was previously installed. Plaintiffs further allege that while Decedent was working on the murphy bed, the bed suddenly sprung back and trapped him. Plaintiffs allege that Decedent was crushed by the sudden action and ultimately died from his injuries.

Plaintiff Hilda is the wife of decedent and Plaintiff A.T. is decedent’s granddaughter. Bestar, Inc. is the alleged manufacturer of the murphy bed and Wayfair, Inc. is the alleged seller. Zach Krasman and Compass, Inc. were the real estate agent and brokerage firm for the sale of the home. Matanel and Irene Maman were the sellers of the home.

Plaintiffs’ Complaint contains causes of action for (1) Products Liability (as to all Defendants) and (2) Negligence (as to all Defendants).

Before the Court is the demurrer of Zach Krasman and Compass, Inc. (Demurring Defendants). Demurring Defendants argue that Plaintiffs have alleged insufficient facts to support either cause of action.  Plaintiffs oppose the demurrer and Demurring 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 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) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Campo Decl. ¶ 3.)

Request for Judicial Notice

Demurring Defendants request judicial notice in conjunction with their Reply papers. Demurring Defendants request judicial notice be taken of the Residential Purchase Agreement signed by Lilit. Demurring Defendants state that notice is proper pursuant to Evidence Code § 452 but they do not specify any subdivision or provide substantive explanation. Plaintiffs object to the judicial notice on grounds that it is not a matter which is indisputably true.

The Court notes that generally Judicial Notice is requested with moving papers, as new evidence is not often considered upon reply. Further, Demurring Defendants have included no explanation with their requests as to why the document is relevant. The Court can glean from the reply papers that Demurring Defendants wish the agreement to be noticed to show the murphy bed was a fixture rather than a product. As will be discussed, the Court finds this argument is irrelevant to determination of this demurrer. As such, Demurring Defendants’ request is DENIED.

First COA – Products Liability – Sustained without Leave to Amend

Demurring Defendants contend that they cannot be subject to strict liability because they did not place the murphy bed in the stream of commerce. The Court agrees with the conclusion.

A plaintiff may seek recovery in a products liability case on theories of both negligence and strict liability. (Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 30.) To state a cause of action for negligence a plaintiff must allege: (1) duty; (2) breach of duty; (3) legal cause; and (4) damages. (Friedman v. Merck & Co.  (2003) 107 Cal.App.4th 454, 463.) “Generally, to establish a strict products liability claim, the plaintiff must prove that [1] there was a defect in the manufacture or design of the product and [2] that such defect was a proximate cause of the injuries.” (Sherman v. Hennessy Industries, Inc. (2015) 237 Cal.App.4th 1133, 1152, fn. 7 [citation and internal quotation marks omitted].)

California products liability doctrine “provides generally that manufacturers, retailers, and others in the marketing chain of a product are strictly liable in tort for personal injuries caused by a defective product.” (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1188.) “A products liability claimant must meet a condition precedent to successfully maintain the action. He or she must show that the object or instrumentality claimed to be defective was in fact a ‘product’ as defined or contemplated by the Restatement of Torts, legislation or case law.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1626.) Whether the particular object or instrumentality is a “product” is a question of law for the trial. (Id.)

Demurring Defendants argue that because they had no hand in manufacturing or producing the murphy bed, they cannot be subject to liability for its defects. Demurring defendants cite to Hernandezcueva v. E.F. Brady Co., Inc., which held:

[U]nder the stream-of-commerce approach to strict liability[,] no precise legal relationship to the member of the enterprise causing the defect to be manufactured or to the member most closely connected with the customer is required before the courts will impose strict liability. It is the defendant’s participatory connection, for his personal profit or other benefit, with the injury-producing product and with the enterprise that created consumer demand for and reliance upon the product (and not the defendant’s legal relationship (such as agency) with the manufacturer or other entities involved in the manufacturing-marketing system) which calls for imposition of strict liability.

(Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243 Cal.App.4th 249, 257.)

Demurring Defendants advance the above quotation as supporting their argument that they cannot be strictly liable because they are only agents of the actual sellers. The Court finds this to be a misunderstanding of the holding in Hernandezcueva.

The Court reads the reference to “agency” in Hernandezcueva to be illustrative of a tenuous connection which cannot, by itself, support a strict products liability claim. Hernandezcueva did not state that agency was never sufficient to assign liability to products, rather it held that some other participation by the agent was needed. The Hernandezcueva court went on to state that “To be subject to strict liability, a party must play more than a random and accidental role in the overall marketing enterprise of the product in question.” (Id. at 258.) “Strict liability is not imposed even if the defendant is technically a ‘link in the chain’ in getting the product to the consumer market if the judicially perceived policy considerations are not satisfied. Thus, a defendant will not be held strictly liable unless doing so will enhance product safety, maximize protection to the injured plaintiff, and apportion costs among the defendants.” (Id.)

The above being established, the Court finds the Complaint currently does not state sufficient facts as to Demurring Defendants’ involvement in placing the murphy bed in the stream of commerce. Plaintiffs’ Complaint lumps Demurring Defendants in with all other Defendants in claiming that they “designed, manufactured, assembled, constructed, installed, recommended, packaged, tested, inspected, distributed, marketed, promoted, advertised, and/or sold the murphy bed” (Compl. ¶ 12.) Plaintiffs only allegations specifically speaking to Demurring Defendants involvement are that they sold the home to Lilit without any disclosures, notice, or warnings about the murphy bed. (Compl. ¶¶ 6-7.) Plaintiffs do not allege any facts supporting their claim that Demurring Defendants had forward knowledge of the defective condition of the murphy bed.

In their opposition, Plaintiffs argue that the murphy bed was held out on the Compass, Inc. website as a feature of the home prior to the sale. They include a screenshot of listing from the Compass website showing the bed. (Oppo. p. 5.) This listing is not present in the Complaint, nor has it been judicially noticed. Accordingly, the listing has no bearing on this demurrer. On the face of the Complaint and judicially noticed facts, Plaintiffs have not stated sufficient facts to allege that Demurring Defendants placed the murphy bed in the stream of commerce.

Lastly, the Court finds Demurring Defendants’ argument that the bed was a “fixture” and not a “product” speaks more to a motion for summary judgment than a demurrer. Whether the bed was in fact a product or fixture is just that, a question of fact. (See Knell v. Morris (1952) 39 Cal.2d 450, 456.) It may be that Demurring Defendants are able to show at trial or via dispositive motion that the bed was a fixture, but such a determination has nothing to do with the sufficiency of Plaintiffs’ Complaint.

Under the stream-of-commerce theory, imposition of strict liability is limited. (Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1535 (Arriaga).) For strict liability to be applicable a party must “play more than a random and accidental role in the overall marketing enterprise of the product in question.” (Garcia v. Halsett (1970) 3 Cal.App.3d 319, 326 “[S]trict liability is not imposed even if the defendant is technically a ‘link in the chain’ in getting the product to the consumer market if the judicially perceived policy considerations are not satisfied.] Therefore, a defendant will not be held strictly liable unless doing so will enhance product safety, maximize protection to the injured plaintiff, and apportion costs among the defendants. [Citations.]” Arriagaa, supra, 167 Cal.App.4th at p. 1537.

Given the arguments in opposition, the Court finds Plaintiffs are unlikely to be able to amend the complaint to meet the requirements for strict liability. Accordingly, the demurrer to the first cause of action is SUSTAINED without leave to amend.

Negligence – Sustained without Leave to Amend

Demurring Defendants demur to the second cause of action for negligence only as it is brought by Plaintiffs Hilda and A.T. Demurring Defendants argue that Hilda and A.T., as third parties, cannot state a claim for negligence because they were owed no duty.

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Demurring Defendants argue that because Hilda and A.T. were not the purchasers of the home, Demurring Defendants owed them no duty. In making their arguments, Demurring Defendants rely primarily on Coldwell Banker Residential Brokerage Co. v. Superior Court. (Coldwell)

In Coldwell, the California Court of Appeals reviewed a trial court determination granting the demurrer of a real estate broker. (Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158, 163.) The plaintiff in the appeal was the minor son of the person who purchased the home. (Id.) The plaintiff alleged he was injured by the defendant’s failure to disclose a mold infestation in the property. (Id.) The trial court sustained the demurrer to plaintiff’s cause of action for fraud/misrepresentation, reasoning that a real estate agent cannot be liable for non-disclosure to third parties. (Id. at 167.) The trial court overruled the demurrer to plaintiff’s cause of action for negligence. (Id. at 163.)

The Coldwell court observed that “Real estate brokers are subject to two sets of duties: those imposed by regulatory statutes, and those arising from the general law of agency.” (Id. at 164, citing Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 755.) The plaintiff in Coldwell proceeded under a statutory theory of duty, arguing that the real estate agent owed him a duty pursuant to Cal. Civ. Code § 2079. (Id.) This section imposes a duty on a real estate agent to prospective buyers “to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective purchaser all facts materially affecting the value or desirability of the property that an investigation would reveal.” (Id.) The court went on to conclude that because the plaintiff had no “broker-customer” relationship with the defendant, no duty was owed. (Id. at 166.)

Plaintiffs contend that Coldwell is too narrow to apply here, but they do not offer reasons as to why. As contrary authority, Plaintiffs cite Hall v. Rockcliff Realtors. Hall concerned a situation in which a plaintiff sought to hold the owners of a property and the real estate agent liable for injuries sustained when they were being shown the house. (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134.) The Hall court ultimately found that real estate agents could be liable for injuries to third parties where they owed them a duty to disclose known but concealed dangerous conditions. (Id. at 1140.)

The Court finds the facts of Hall to be inapposite to this case. Here, Hilda and A.T. were not injured by a concealed condition during the showing of a property. Instead, Hilda and A.T.’s negligence claim stems from injuries incurred by Decedent after the property was purchased. The Court finds the facts of this case are instead much closer to those of Coldwell. Further, any claim of duty owed to Hilda and A.T. would necessarily be on the failure to inspect and warn. The Complaint does not allege Demurring Defendants duty specifically, instead it lumps it in with duties owed by actual manufacturers. It appears to the Court that the theory of duty which Plaintiffs seek to apply to Demurring Defendants is indeed a failure to inspect and warn. This duty has been codified in Cal. Civ. Code § 2079 and held to be inapplicable to third persons as per Coldwell. As such, it appears that Demurring Defendants cannot owe Hilda and A.T. a duty to warn as a matter of law.

To the extent that Hilda and A.T. may be able to allege a different duty is owed to them, the Court finds leave to amend appropriate. Accordingly, the demurrer to this 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 

Zach Krasman & Compass, Inc.’s Demurrers came on regularly for hearing on April 19, 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 DEMURRER TO THE FIRST CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE DEMURRER TO THE SECOND CAUSE OF ACTION, AS BROUGHT BY PLAINTIFFS HILDA AND A.T., IS SUSTAINED WITHOUT LEAVE TO AMEND.

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

IT IS SO ORDERED. 

DATE:  April 19, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles