Judge: James L. Crandall, Case: 21-1235684, Date: 2022-10-13 Tentative Ruling

Demurrer to Complaint

Defendant Premier Paving Inc.’s Demurrer to Plaintiffs’ Christopher Gryniuk and Linda Gryniuk Complaint, filed on 5-31-22 under ROA 14 is OVERRULED.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)

Code of Civil Procedure section 452, states, “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.”

Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]”

William S. Hart Union High School District (C.A.) (2012) 53 Cal.4th 861, 872, provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]” “Thus, the complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts. [Citations.]” (Doe v. City of Los Angeles (Doe) (2007) 42 Cal.4th 531, 550.)

“[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

The elements of a cause of action for premises liability are:

(1) the defendant owned, leased, or occupied the property;

(2) the defendant was negligent in the use or maintenance of the property;

(3) the plaintiff was harmed, and

(4) the defendant’s negligence was a substantial factor in causing the plaintiff’s harm. CACI 1000.

Premises liability is a form of negligence; it is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal. App. 3d 1611, 1619.)

A person who owns or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. (CACI Jury Instruction 1001.) That is, the elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 646, 671.)

The “completed and accepted” doctrine is as follows: “[W]hen a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed.” (Neiman, supra; Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal. App. 4th 1461, 1466-71.) When applicable, this doctrine operates as a complete shield to negligence liability by negating the essential element of duty. (Neiman v. Leo A. Daly Co. (2012) 210 Cal. App. 4th 962, 969.)

The “completed and accepted doctrine” provides that when a contractor’s work has been completed and accepted by the property owner, the contractor is no longer liable to third parties for injuries that may occur as a result of the condition of the work, even if the contract was negligent in carrying out the contract. (Jones v. P.S. Development Co. Inc. (2008) 166 Cal. App. 4th 707, 717 (disapproved on other grounds, Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 532 n. 7).)

Liability for the safety of a contractor’s work shifts to the owner of the premises upon the owner’s acceptance of the work. (Id.) The property owner has a duty to inspect a contractor’s work to ascertain its safety before accepting it. (Sanchez v. Swinerton & Walberg Co., supra, 47 Cal.App.4th 1461, 1466.) By accepting the work after an opportunity to examine it, the owner represents to the world that the work is safe. (Jones, 166 Cal.App.4th at 717.) The contractor’s liability to 3rd parties ceases once the owner accepts the contractor’s work - at which time the owner becomes liable for its safety. (Sanchez, 47 Cal.App.4th at 1466.)

The “completed and accepted doctrine” is an affirmative defense. (Neiman, supra; Sanchez v. Swinerton & Walberg Co. 47 Cal. App. 4th at 969.) An answer to the complaint is required to make “A statement of any new matter constituting a defense.” Code Civ. Proc. § 431.30(b)(2). “’[A]ny issue on which defendant bears the burden of proof at trial is ‘new matter’ and must be specially pleaded in the answer.’” (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 756.)

For the affirmative defense of work completed and accepted, a defendant must allege and prove: “1. That [name of defendant] completed all of [his/her/its] work on the project; ¶ 2. That [name of owner] accepted [name of defendant]’s work; and ¶ 3. That an average person during the course of a reasonable inspection would have discovered the defect.” (CACI Jury Instruction 4552.)

“[A] patent defect is one which can be discovered by the kind of inspection made in the exercise of ordinary care and prudence. In contrast, a latent defect is hidden, and would not be discovered by a reasonably careful inspection.” (The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal. App. 4th 30, 35.)

Here, the Complaint alleges that in 2019, Defendant Marlborough Seaside Villas Condominium Association, Inc. hired Defendant Premier Paving, Inc. to restripe the outdoor parking spaces. The complaint alleges that "the MSV HOA did not restripe the parking spaces with any consistency in widt and that the widest parking space was narrower than the Dana Point Municipal Code's minimum width, including the Gryniuk's space. (Complaint, ¶¶ 16-21)

The Complaint pleads that "[t]he restriping work was completed by PREMIER PAVING INC." (Complaint ¶ 17.) The Complaint further pleads “[t]he Gryniuks restriped space, No. 015, was 7’ wide. It is substantially narrower than their previous parking space and half the required minimum width of a handicapped parking space.” (Complaint ¶ 20)

The Complaint further pleads “[b]ecause of the narrowness and deceptive appearance of the space, Ms. Gryniuk tripped and fell, sustaining multiple scrapes and bruises and a nondisplaced fracture of the fifth metatarsal bone in her left foot.” (Complaint ¶ 23)

There is no fact alleged in the Complaint that Defendant Marlborough Seaside Villas Condominium Association, Inc. accepted the work.

Furthermore, it is unclear whether an average and likely non-disabled person during the course of a reasonable inspection would have discovered the defect, especially considering it was a technicality with the municipal code.

The allegations on their face do not bar the cause of action.

Based on the foregoing, Plaintiff can state a cause of action for negligence based on the allegations in the Complaint and regardless of the “completed and accepted” defense.

Thus, the Court OVERRULES Defendant Premier Paving Inc.’s Demurrer to Plaintiffs’ Complaint, filed on 5-31-22 under ROA 14.

Defendant to file an Answer within 10 days.

Plaintiff to give notice.

Future hearing dates

8/4/23 – MSC

9/19/23 – Court Trial