Judge: Gail Killefer, Case: 22STCV16885, Date: 2023-08-08 Tentative Ruling
Case Number: 22STCV16885 Hearing Date: August 8, 2023 Dept: 37
HEARING DATE: Tuesday, August 8, 2023
CASE NUMBER: 22STCV16885
CASE NAME: Charlene Wood v. 99 Cents Only Stores, et al.
MOVING PARTY: Cross-Defendant Pacific Realty
Associates, L.P.
OPPOSING PARTY: Cross-Complainant 99 Cents Only Stores LLC
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer
OPPOSITION: 26 July 2023
REPLY: 1
August 2023
TENTATIVE: Cross-Defendant Pacific Realty Associates,
L.P.’s demurrer to 99 Cents Only Stores
LLC’s Cross-Complaint is sustained. The
court grants Plaintiff 20 days leave to amend, and schedules an Order to Show
Cause Re: Amended Complaint for September 27, 2023, at 8:30 a.m. Cross-Defendant PRA to give notice.
Background
This action rises out of an alleged trip and fall incident
that occurred on or about March 1, 2021, at a commercial property located at 1746-1790
E. Main Street in El Cajon, CA (the “property”). Plaintiff Charlene Wood alleges
she tripped at or near a shopping cart located at the property.
Cross-Defendant Pacific Realty Associates (“PRA”) was the previous
owner of the property, which it sold to Defendant/Cross-Defendant Leonid
Grinberg, LLC (“Grinberg LLC”) in 2006. At
the time of the incident in March 2021, Grinberg LLC owned the property and
leased it to Defendant/Cross-Complainant 99 Cents Only Stores, LLC (“99 Cents”),
pursuant to a sublease with Cross-Defendant The Kroger Co. (“Cross-Defendant
Kroger”), the successor in interest to Cross-Defendant the Vons Companies (“Vons”).
On May 23, 2022, Plaintiff filed a Complaint against 99
Cents and Grinberg, LLC. On July 25, 2022,
Defendant 99 Cents filed a Cross-Complaint against Grinberg LLC and Roes 1
through 5, followed by a Roe Amendment filed on January 19, 2023, naming PRA,
Kroger, and Vons. The cross-complaint alleges
the following five cause of action against the four Cross-Defendants:
1)
Indemnification;
2)
Comparative Indemnity and Contribution;
3)
Declaratory Relief;
4)
Negligence; and
5)
Express Indemnity.
On June 16, 2023, PRA filed a Demurrer to 99 Cents’
Cross-Complaint. Defendant 99 Cents filed opposing papers on July 26, 2023. PRA
filed a reply on August 01, 2023.
Cross-Complainant 99 Cents objects
to Exhibits A and C attached to Cross-Defendant PRA’s demurrer to the
Cross-Complaint. Cross-Defendant PRA filed a reply to Plaintiff’s objections.
The Exhibits refers to matter
outside of the pleadings and are irrelevant to the disposition of this Demurrer
on the merits. Accordingly, the court sustains Plaintiff’s objections to
Exhibits A and C.
I. Legal Standard
Where pleadings are defective, a party may raise the defect
by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A
demurrer tests the sufficiency of a pleading, and the grounds for a demurrer
must appear on the face of the pleading or from judicially noticeable matters.¿
(Code Civ. Proc., § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) In evaluating a demurrer, the court accepts the complainant’s properly
pled facts as true, and ignores contentions, deductions, and conclusory
statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano
v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider
whether a plaintiff will be able to prove the allegations, or the possible
difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 604.)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Id.)
II. Allegations in the Cross-Complaint
The
Cross-Complaint (“CC”) alleges that 99 Cents leased the property to Grinberg
LLC, on April 17, 2006, including on the date when Plaintiff sustained her
injury. (CC ¶ 3, Ex. B.) Due to the assignment of the interest and obligations
of the lease, Grinberg, LLC agreed to indemnify and hold 99 Cents harmless from
any and all claims, demands and causes of action arising out of the common
areas at the subject property. (CC ¶ 30.) 99 Cents received a Notice of Change
of Sublessor. (CC ¶ 30, Ex. B.)
Cross-Defendant
PRA now demurs to the entire Cross-Complaint on the basis that it assigned its
interest and labilities to Grinberg, LLC, and cannot be held liable by 99 Cents
under the lease.
III. Demurrer to Cross-Complaint[1]
As the Cross-Complaint alleges
that Grinberg, LLC
was assigned the lease (CC ¶ 30, Ex. B), Cross-Defendant PRA cannot be held liable
unless the Cross-Complaint alleges facts to show that the assignment to Leonid
Grinberg, LLC is void.
“An assignee stands in the shoes of the assignor,
acquiring all of its rights and liabilities.” (Professional Collection
Consultants v. Hanada (1997) 53 Cal.App.4th 1016, 1018–1019.) The
Cross-Complaint alleges no facts to show that the subject matter of the
assignment lacked particularity as to the rights assigned or liability for
maintenance of the common areas such that PRA can be held liable. (See Mission Valley East, Inc. v. County of Kern (1981) 120
Cal.App.3d 89, 97.) Nor does the Cross-Complaint challenge the language of the
assignment as excluding tort claims against PRA. Moreover, no specific
allegations are made against PRA in the Cross-Complaint. The court finds
Cross-Complainant 99 Cents’ opposition to be without merit.
PRA’s demurrer is sustained with leave to amend.
Conclusion
Cross-Defendant PRA’s demurrer to 99
Cents Only Stores LLC’s Cross-Complaint is sustained with leave to amend.