Judge Jill Feeney, Case 22STCV05887 2022-12-08 Tentative Ruling

This is an action for negligence and premises liability arising from a trip and fall incident which took place in April 2021. Plaintiff Edward Adzhemyan filed his Complaint against Defendants the City of Los Angeles, the County of Los Angeles, Nationwide RP Corporation, and the Los Angeles Department of Water and Power on February 16, 2022.

Nationwide demurs to Plaintiff’s Complaint on the grounds that Plaintiff’s Complaint fails to state facts sufficient to support her causes of action for general negligence and premises liability. Nationwide also argues that the Complaint is uncertain, ambiguous, and unintelligible because it contains contradictory allegations.

Plaintiff argues that the Complaint sufficiently alleges that Nationwide is the owner of the property adjacent to the sidewalk at issue, owed a duty to maintain the sidewalk, left a manhole open in the sidewalk, which caused Plaintiff to fall and suffer injuries. Plaintiff also argues that the Complaint sufficiently alleges that Nationwide controlled the area where Plaintiff fell.

On reply, Nationwide argues that Plaintiff’s allegation that he fell through a manhole is a new allegation not contained in the Complaint. Nationwide also argues that Plaintiff has no facts to support his claims and that the alleged open manhole was open due to maintenance work that cannot be attributed to Nationwide.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Nationwide requests that the Court take judicial notice of (1) the Grant Deed regarding Assessor’s Identification Numbers: APN: 5546-006-023; APN: 5546-006-019; APN: 5546-006-018; APN: 5546-006-007; and APN: 5546-006-002, and (2) City of Los Angeles Assessor’s Parcel Map – 5546, Sheet 6. The requests are granted.

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Nationwide sent meet and confer correspondence to Plaintiff’s counsel on May 18, 2022 and discussed the issues raised in the letter via phone on May 23, 2022. (Marcos-Schaller Decl., ¶¶3-4.) Plaintiff granted an extension for Nationwide’s responsive pleading. (Id., ¶4.) The parties were unable to resolve their disagreements over the Complaint and Nationwide filed its demurrer. (Id., ¶6.) Nationwide met the meet and confer requirements.

The Court initially notes that Plaintiff’s allegations of premises liability and negligence are duplicative. They are based on the same theory of recovery and the same facts. Accordingly, the Court treats both of Plaintiff’s causes of action for premises liability and negligence as one.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

“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.) “[P]roperty owners are liable for injuries on land they own, possess, or control. But . . . the phrase own, possess, or control is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162.) “Where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it,” there is not a clear “legal basis for imposing liability for failure to properly maintain the sidewalk.” (Williams v. Foster, 216 Cal. App. 3d at p. 521.)

Under the “sidewalk accident decisions” doctrine, an “abutting property owner is not liable in tort to travelers injured on the sidewalk, unless the owner somehow creates the injurious sidewalk condition.” (Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) However, it is not determinative that the defendant created the condition; absent some affirmative construct or alteration, the defendant must also have negligently created the hazard. (See Lopez v. City of Los Angeles, 55 Cal.App.5th at p. 256-258.) (“an owner or occupier can also be held liable for creating more temporary and fleeting hazards on abutting public property if it acts negligently in doing so.”)

Here, Plaintiff’s Complaint states that on April 2, 2021, Plaintiff “was walking to his parked vehicle on Wilcox Ave” and attempted to open the door to his vehicle when “he stepped back and his leg fell into an open hole on Wilcox” at or near the intersection with Hollywood Blvd. (Comp., p.4.) The open hole at the intersection where Plaintiff fell was owned, operated, or otherwise controlled by Defendants. (Id.) Defendants “negligently created the dangerous condition, namely the open hole,” had actual or constructive notice of the hole, and should have known that Plaintiff’s injury would occur because of the dangerous condition. (Id.) Plaintiff incurred medical expenses and suffers from mental, emotional, and physical. Injuries. (Id.)

Plaintiff’s Complaint sufficiently states facts that support his causes of action for negligence and premises liability. Specifically, it alleges that Nationwide owned, operated, or otherwise controlled the open hole that Plaintiff fell into. As the owner or entity controlling the hole, Nationwide owed a duty to exercise ordinary care in the management of the property. In leaving the hole open, Nationwide breached its duty and Plaintiff suffered injuries as a result. The Complaint also alleges that Nationwide created the open hole.

Although Nationwide requested judicial notice of grant deeds and a parcel map showing it did not own the street or sidewalk where Plaintiff fell, this information does not refute Plaintiff’s allegation in the Complaint that Nationwide controlled the sidewalk or created the open hole.

Code Civ. Proc., section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Here, Nationwide argues that the Complaint is uncertain because it contains contradictory allegations as to whether Plaintiff’s injury took place on the sidewalk or the street. However, this discrepancy does not make the Complaint so bad that Nationwide cannot reasonably respond. Nationwide is still on notice that it is being sued for injuries arising from Plaintiff’s fall into a hole at Wilcox Ave at or near the intersection of Wilcox Ave. and Hollywood Blvd.