Judge: Gary I. Micon, Case: 23CHCV02919, Date: 2024-05-09 Tentative Ruling
Case Number: 23CHCV02919 Hearing Date: May 9, 2024 Dept: F43
Dept. F43
Date: 3-9-24
Case # 23CHCV02919, Richard Wander vs. Cathy Isaacs,
et al.
Trial Date: N/A
DEMURRER
MOVING PARTY: Defendant Newhall-Hidden Valley Homeowners
Association
RESPONDING PARTY: Plaintiff Richard Wander
RELIEF REQUESTED
Demurrer to the Complaint
·
As to the entire Complaint
·
1st Cause of Action for Negligence
·
2nd Cause of Action for Premises
Liability
·
3rd Cause of Action for Negligent
Exercise of Retained Control
RULING:
The Court overrules in part and sustains in part. The
Court overrules the demurrer as to the Negligence and Premises Liability causes
of action. However, the Court sustains with leave to amend the demurrer as to
the Negligent Exercise of Retained Control cause of action. Plaintiff has 20
days to file the First Amended Complaint.
SUMMARY OF ACTION
On September 28, 2023, Plaintiff Richard Wander
(“Plaintiff”) filed the Complaint against Defendants Cathy Isaacs and Does 1
through 25 (collectively, “Defendants”) alleging negligence, premise liability,
and negligent exercise of retained control. On October 25, 2023, the Complaint
was amended to change Doe 1 to Newhall-Hidden Valley Homeowners Association
(“HOA”).
This action arises out of alleged personal injuries
sustained by Plaintiff while performing work for a homeowner Defendant Isaacs.
Specifically, Plaintiff alleges that Defendant Cathy Isaacs was the homeowner
who hired Plaintiff to paint her property located at 24510 Thistle Ct, Santa
Clarita, CA 91321 (the “Property”). Plaintiff alleges that Defendant HOA and
Defendant Isaacs own the Property. Moreover, Plaintiff alleges that on or about
October 27, 2021, while attempting to paint the Property, he sustained serious
bodily injuries when he fell off the Property’s roof. Plaintiff further alleges
that Defendant Isaacs and Defendant HOA caused his injuries based on
allegations including, but not limited to, Defendants’ failure to ensure
Plaintiff was properly licensed to perform the work, Defendants’ failure to
provide safety equipment, and Defendants’ failure to provide adequate warnings
of a hazardous condition.
Defendant HOA relies on the Declaration of Covenants,
Conditions and Restrictions (“CC&Rs”) to show that it is not the proper
defendant.
Defendant HOA filed its demurer on December 20, 2023. Plaintiff
filed his opposition on April 30, 2024. Defendant HOA filed its reply on May 6,
2024.
JUDICIAL NOTICE
Defendant HOA requests judicial notice for the following
documents pursuant to Evidence Code section 452:
Exhibit A: The Declaration of Covenants, Conditions
and Restrictions for Newhall Hidden Valley Homeowners Association, recorded on
April 10, 1984, in the Official Records of the Recorder’s Office of Los Angeles
County as document number 84-433558.
Under Evidence Code section 452,
the Court may take judicial notice of “[f]acts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy,” and
must take judicial notice of such facts and propositions if a party so requests
and provides sufficient notice to the adverse party. (Evid. Code, §§ 452, subd.
(h) & 453.)
However, the court does not “take
judicial notice of the truth of factual matters asserted therein.” (Ramsden
v. Western Union (1977) 71 Cal.App.3d 873, 879.) “To go beyond notice of
the existence of a document to an interpretation of its meaning constitutes
improper consideration of evidentiary matters.” (Middlebrook-Anderson Co. v.
Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038.)
The Court GRANTS takes judicial
notice of the document, but not the facts stated therein.
MEET AND CONFER
Before filing a demurrer, the demurring party shall meet and
confer in person or by telephone with the party who has filed the pleading
subject to the demurrer and file a declaration detailing their meet and confer
efforts.¿ (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and
confer process is not grounds to¿overrule or sustain a demurrer.¿ (Code Civ.
Proc., § 430.41(a)(4).)
Here, the Demurrer was preceded by good faith meet and
confer efforts by counsel for the Association. (Rocha Decl. ¶¶ 4, 5, 6.)
Therefore, the meet and confer requirements were satisfied.
ANALYSIS
Defendant HOA demurs to all three causes of action because
the Complaint fails to state facts sufficient to constitute a cause of action
against Defendant Association. (Dem. p.6.) Moreover, Defendant HOA argues that
it is not a proper party to this action. (Id. at p.4.) Plaintiff argues
that Defendant HOA based its demurrer entirely on extrinsic facts and evidence.
(Opp. p.3.) In reply, Defendant HOA argues that the Court must accept and
consider the judicially noticed CC&Rs which includes a provision stating
that each owner is responsible for maintaining their own lot and Plaintiff
failed to mention the Association. (Reply pp. 2-3.)
The CC&Rs and the statutes governing Homeowners
Associations notwithstanding, the allegations that the Defendant Association
exercised control and other allegations in the Complaint govern our analysis at
this point. The Court finds that Defendant’s arguments and use of extrinsic
evidence are beyond the scope of the instant demurrer because a demurrer only
challenges the “sufficiency of a pleading.”
A demurrer is an objection to a pleading, the grounds for
which are apparent from either the face of the complaint or a matter of which
the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) The purpose of a demurrer is to challenge the sufficiency of a pleading
“by raising questions of law.” (Postley
v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a
pleading, for the purpose of determining its effect, its allegations must be
liberally construed, with a view to substantial justice between the parties.” (CCP
§ 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law…”
’ ” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525.) In applying these standards, the court liberally
construes the complaint to determine whether a cause of action has been stated.
(Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733.)
Negligence
Defendant argues that¿Plaintiff fails to allege facts
sufficient¿to state a cause of action for negligence because Plaintiff
fails to allege the second element of negligence, a breach of a legal duty of
care. (Dem. p. 7.) Moreover, Plaintiff makes no specific allegations as to the
Association.
(Id.) The elements for negligence are: (1) a legal duty owed to the
plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to
the plaintiff. (See County of Santa Clara v. Atlantic Richfield Co.
(2006) 137 Cal.App.4th 292, 318.) In dispute is whether the
second negligence element was satisfied. The Complaint alleges “Defendants
negligently owned, operated, maintained, controlled, managed, and operated the
Property so as to directly and legally cause the serious injuries and damages
to Plaintiff as described herein.” (Complaint ¶ 26.) The Complaint further
alleges “Defendant Cathy Isaacs and DOES 1 through 50, inclusive, owns the
Property [and] Plaintiff, an employee of the Defendants, was working on the
Property, pursuant to the agreement and/or contract between himself and
Defendant Cathy Isaacs.” (Complaint ¶¶ 6, 13.) Does 1 is the demurring party. The
Court finds this is sufficient to establish the second element. As such, the
Court finds negligence is sufficiently plead.
The Court overrules the demurrer as to the Negligence cause
of action.
Premises Liability
Defendant argues that Plaintiff fails to state sufficient
facts to state a cause of action for premises liability. The elements of a
cause of action for premises liability are the same as those for negligence:
duty, breach, causation, and damages. (Castellon
v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.) Those who own, possess,
or control property generally have a duty to exercise ordinary care in managing
the property¿to¿avoid exposing others to an unreasonable risk of harm. (Annocki¿v.
Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.) The existence and
scope of duty are legal questions for the Court. (Id. at p. 36.) If there is a condition that poses a danger
to customers and others on the premises, the property owner is “under a duty to
exercise ordinary care either to make the condition reasonably safe for their use
or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc.¿(1960)
53 Cal.2d 443, 446.) Again, in dispute is only the second element.
The Complaint alleges “Defendants, as the owner and operator
of the Property as herein above alleged, were negligent in that, among other
things, they failed to exercise due care in their ownership, construction,
operation, and maintenance of the Property to ensure that visitors were not
subject to any unreasonable risk of harm when on the premises.” (Complaint ¶
35.) The Complaint further alleges “[o]n or about October 27,201, while
attempting to perform work on the Property, Plaintiff fell off the roof of the
Property and suffered severe physical injuries.” (Complaint ¶ 12.) The
Complaint also alleges “[o]n or about October 27, 2021, Defendants, owned,
maintained, controlled, managed, and operated the Property. (Complaint ¶ 34.) Defendants, as reasonable prudent owners,
operators, and/or controllers of the Property, should have foreseen Plaintiff
would be exposed to a risk of harm. (Id. at ¶ 34.) As such, Defendants
owed Plaintiff a duty of care.” (Id.) Moreover, they breached that duty
by failing to “provide safety equipment”, “provide scaffolding or safety
measures” and failing to warn Plaintiff of dangerous conditions. (Id. at
¶¶ 14-20.) This is sufficient to state a cause of action for premises
liability.
Thus, the Court overrules the demurrer as to the Premises
Liability cause of action.
Negligent Exercise of Retained Control
Defendant also argues that this cause of action fails
because there are no sufficient facts to state a cause of action. The basis of
liability for a claim of negligent exercise of retained control is that the
defendant retained control over the manner of performance of some part of the
work entrusted to a contractor. (Sandoval v. Qualcomm Inc. (2021) 12
Cal.5th 256, 273.) “Contract workers must prove that the hirer both retained
control and actually exercised that retained control in such a way as to
affirmatively contribute to the injury.” (Id. at 276.) The Complaint
alleges “Defendant Cathy Isaacs and Does 1 through 50, were actively involved
in, or asserted control over the manner of performance of the work to be
completed on the Property.” (Complaint ¶ 38s.) The Complaint further alleges,
“Defendant Cathy Isaacs and Does 1 through 50, directed that the work on the
Property be done by use of a certain mode or otherwise interfered with the
means and methods by which the work was to be accomplished.” (Id. at ¶
39.) The allegations are not sufficient to state a cause of action for this
cause of action because they are conclusory.
Therefore, the Court sustains with leave to amend, the cause
of action for Negligent Exercise of Retained Control.
Moving party to give notice.