Judge: Jill Feeney, Case: 22STCV13522, Date: 2022-07-29 Tentative Ruling

Case Number: 22STCV13522    Hearing Date: July 29, 2022    Dept: 30

Department 30, Spring Street Courthouse
July 29, 2022
22STCV13522
Demurrer to Plaintiff’s Complaint filed by Defendant W.A. Rasic Construction Company

DECISION

The demurrer is overruled with respect to the first cause of action: negligence.

The demurrer is sustained without leave to amend as to the second cause of action: dangerous condition of public property as to Defendant A&A Ready Mixed Concrete, Inc.

Moving party is ordered to provide notice and to file proof of service fo such notice within five court days after the date of this order.  

Background

On April 22, 2022, Plaintiff Jeffrey Hutchison filed his Complaint alleging negligence and dangerous conditions on public property against W.A. Rasic Construction Company (“Rasic”), A&A Ready Mixed Concrete, Inc. (“A&A”), the City of Manhattan Beach (“Manhattan Beach”), the City of El Segundo (“El Segundo”), the County of Los Angeles (“County”), and Does 1 to 50. Plaintiff alleges that he collided with a deposit of hardened concrete located in a bicycle lane.

On June 29, 2022, Rasic filed its Cross Complaint against A&A for implied indemnity, total indemnity, declaratory relief, and apportionment of fault.

On June 15, 2022, A&A filed its demurrer to Plaintiff’s complaint.

Summary

Moving Arguments

A&A demurs to the entirety of the Complaint on grounds that the Complaint fails to state facts sufficient to constitute a cause of action. Specifically, the Complaint fails to allege how A&A owed a duty to Plaintiff. Additionally, A&A argues that the “completed and accepted” doctrine shields A&A from liability. 

Opposing Arguments

Plaintiff’s opposition contends that the complaint on its face pleads negligence against A&A and that its negligence was the legal cause of the injury to Plaintiff. Plaintiff further argues that the factual defenses raised by A&A, such as the “completed and accepted doctrine” are properly raised as affirmative defenses and cannot be litigated by demurrer. Finally, Plaintiff requests leave to amend the complaint to allege, among other things, that A&A negligently deposited concrete in         
a bicycle lane creating a condition that caused Plaintiff’s crash and further that at the time of the crash A&A was still engaged in the relevant roadway work.  

Reply Arguments

A&A reiterates the arguments it raised in its demurrer.

Legal Standard

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”].)

Discussion

Negligence Cause of Action

“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.) Where a contractor exercises control over the owner's premises, his duty of care toward third persons is commensurate with that of the owner. (Chance v. Lawry's, Inc. (1962) 58 Cal.2d 368, 376.) Generally, contractors owe a duty to “use reasonable care to prevent damage to persons whom he may reasonably expect to be affected by his work.” (Id. at 378.)

The “completed and accepted” doctrine provides that an owner who has accepted a contractor’s work represents it to be safe and consequently becomes liable for its safety. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466.) The contractor is liable if the work done is so negligently defective as to be imminently dangerous and the contractor knows, or should know, of the dangerous situation created by him, and the owner does not know. (Id at 1467.) 

The Complaint states that Plaintiff’s crash took place “in the bicycle lane on west bound Rosecrans Avenue.” (Compl., ¶15.) Each defendant “owned and/or controlled, managed, and used the property located in and around the west bound bicycle lane on Rosecrans Avenue.” (Id., ¶14.) The property “was dangerous and unsafe because there was a deposit of hardened concrete created” by each defendant. (Id., ¶17) Additionally, each defendant “knew, or through the exercise of reasonable care should have known of the existence of the dangerous condition and had the opportunity to make the property safe.” (Id., ¶20)

There are sufficient facts alleged to sustain a cause of action for negligence against A&A. Even if a contractor does not own or control the property, contractors owe a duty to use reasonable care to prevent damage to persons who may reasonably be expected to be affected by the contractor’s work. The Complaint alleges that each Defendant, including A&A, left a large deposit of concrete in a bike lane. A&A, a contractor, owed a duty of reasonable care to prevent damage to those who would reasonably be expected to come into contact with its work on the bike lane.

A&A is not relieved from liability under the “completed and accepted” doctrine because the Complaint does not state that A&A’s work was completed and that the property owner accepted the work. It would be inappropriate to grant A&A’s demurrer on the basis of this doctrine at this stage without allegations in the pleadings that A&A’s work was completed and accepted.   

Dangerous Condition on Public Property Cause of Action

A&A also argues that its demurrer should be granted as to Plaintiff’s second cause of action for Dangerous Conditions on Public Property because it is not a government entity.

Government Code section 835 states:¿“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: 

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿ 

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”¿ 

Here, A&A is not a public entity, but a private corporation. (Compl., ¶3.) A&A cannot be held liable for Dangerous Conditions on Public Property.

Leave to Amend

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

Plaintiff fails to show how he could amend the Complaint to state a cause of action for Dangerous Condition on Public Property against A&A. Thus, leave to amend is not appropriate.