Judge Kerry Bensinger, Case 20STCV30282 2023-03-01 Tentative Ruling

On August 11, 2020, Consuelo Martinez (“Plaintiff”) commenced the present action by filing a Complaint against City of Covina and Does 1 through 20. On October 20, 2020 and October 26, 2022, respectively, Plaintiff filed an “Amendment to Complaint (Fictitious/Incorrect Name)”, substituting Defendant Robert Raab (“Defendant Raab”) as Doe 1 and Defendant Alberto Castro (“Defendant Castro”) as Doe 3. Plaintiff’s Complaint alleges a single cause of action for “Negligence”. Plaintiff’s Complaint arises from a fall suffered by Plaintiff when walking upon the business property located at approximately 741 North Viceroy Avenue, in Covina, California (“Subject Property”). Plaintiff maintains she was walking upon the Subject Property when she fell into a large hole where a tree had been previously removed by Defendant City of Covina, and over which grass had grown, obscuring the hole. Plaintiff alleges Does 1 through 20 were the owners or operators of the Subject Property and responsible for the maintenance of the Subject Property.

On September 21, 2022, Defendant Raab (Defendant/Cross-Complainant Raab”) filed a Cross-Complaint against Defendant Alberto Castro (“Defendant/Cross-Defendant Castro”). Defendant/Cross-Complainant Raab’s Cross-Complaint alleges the following causes of action: (1) Contribution; (2) Indemnity; and (3) Declaratory Relief.

On January 27, 2023, Defendant/Cross-Defendant Castro file two Demurrers, challenging both the Complaint filed against him by Plaintiff, as well as the Cross-Complaint filed against him by Defendant/Cross-Complainant Raab. Defendant/Cross-Defendant Castro’s dual Demurrers are now presently before the Court for consideration.

The moving party against whom a complaint or cross-complaint is directed may object by demurrer to the pleading on one of several grounds outlined by section 430.10.¿ (Code Civ. Proc., § 430.10, subd. (a)-(h).)¿ These grounds include lack of jurisdiction, lack of legal capacity to sue, uncertain pleadings, or pleadings that do not state facts sufficient to constitute a cause of action, among others.¿ (Ibid.)¿¿¿

A demurrer¿advanced on the ground the pleading does not state facts sufficient to constitute a cause of action “tests the legal sufficiency of the factual allegations in a complaint.”¿ (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725; Code Civ. Proc., § 430.10, subd. (e).)¿ The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”¿ (Id.)¿ The court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]”¿ (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.)¿ The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.”¿ (Fremont Indemnity Co v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)¿ “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]”¿ (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿¿¿¿

Code of Civil Procedure section 430.41 requires, “[b]efore filing a demurrer pursuant to this chapter, the demurring party 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., § 430.41, subd. (a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due.¿ (Code Civ. Proc., § 430.41, subd. (a)(2).)¿ Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts.¿ (Code Civ. Proc., § 430.41, subd. (a)(3).)

Defendant/Cross-Defendant Castro demurs to Plaintiff’s Complaint on the ground Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. (Code Civ. Proc., § 430.10, subd. (e).)

The Court concludes Defendant/Cross-Defendant Castro has satisfied the meet and confer requirements enumerated within Code of Civil Procedure section 430.41. (Code Civ. Proc., § 430.41.) The Declaration of Bradley R. Mathews declares, counsel of record for Defendant/Cross-Defendant Castro “spoke at length on the phone about the issues raised by this Demurrer” with Plaintiff’s counsel of record, at least five days before the hearing date, however the parties were unable to reach an agreement with respect to the aforementioned issues. (Mathews Decl., ¶ 4.) Accordingly, the Court concludes Defendant/Cross-Defendant Castro has satisfied the meet and confer requirements enumerated within Code of Civil Procedure section 430.41. (Code Civ. Proc., § 430.41.)

Defendant/Cross-Defendant Castro’s Demurrer advances two central arguments. First, Defendant/Cross-Defendant Castro argues this Court should sustain the instant Demurrer because Plaintiff’s Complaint fails to allege sufficient facts for the purposes of establishing a cause of action against Defendant/Cross-Defendant Castro as a Doe Defendant. Second, Defendant/Cross-Defendant Castro argues the Court should, furthermore, sustain the present Demurrer without leave to amend as any attempt to allege a cause of action against Defendant/Cross-Defendant Castro would not “relate back” to the original Complaint and, therefore, the statute of limitations would have expired with respect to Defendant/Cross-Defendant Castro.

The Court, first, assesses Defendant/Cross-Defendant Castro’s initial argument concerning whether or not Plaintiff’s Complaint alleges facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. The Complaint is captioned as a “Complaint for Fall.” The Complant does not label a particular cause of action. Rather, the Complaint proceeds by way of a series of numbers paragraphs which include the operative allegations. The Complaint sounds in negligence and premises liability. (Compl., ¶¶ 4-7 [alleging defendants “negligently and carelessly owned, operated, maintained and controlled said premises in a dangerous, defective, hazardous and unsafe condition” and such negligence maintenance caused Plaintiff personal injuries]; New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714-715 [“a demurrer ‘tests only whether, as a matter of law, the properly pleaded facts in the complaint state a cause of action under any legal theory.’ ”].)

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 in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Here, Plaintiff’s Complaint alleges sufficient facts for the purposes of asserting a cause of action for negligence against Defendant/Cross-Defendant Castro. The Complaint alleges Plaintiff suffered personal injuries when he fell into a large hole where a tree had been previously removed by Defendant City upon the Subject Property. (Compl., ¶ 6.) In addition to Defendant City, Defendant/Cross-Defendant Castro (as Doe Defendant 3) owed a duty of care to Plaintiff with respect to the condition of the Subject Property as Defendant/Cross-Defendant Castro “owned, operated, maintained, and controlled” the Subject Property, or was an “employee” or “agent” of the persons who owned, operated, maintained, and controlled the Subject Property. (Compl., ¶¶ 4-5.) Plaintiff’s Complaint alleges Defendant/Cross-Defendant Castro breached the aforementioned duty of care by “fail[ing] to warn Plaintiff of the said dangerous, unsafe condition, although defendants and each of them knew, or in the exercise of ordinary care should have known, of said danger.” (Compl., ¶ 7.) Due to Defendant/Cross-Defendant Castro’s failure to warn Plaintiff of the aforementioned hole, Plaintiff alleges he fell into the hole and sustained personal injuries to his person. (Compl., ¶ 8.) The above allegations are sufficient to state a cause of action for negligence against Defendant/Cross-Defendant Castro. As a result, the Court finds Plaintiff’s first argument unpersuasive and, additionally, refrains from considering Plaintiff’s second argument, which is conditioned upon a finding of insufficiency with respect to the allegations of Plaintiff’s Complaint.

Based on the foregoing, Defendant/Cross-Defendant Castro’s Demurrer to Plaintiff’s Complaint is OVERRULED.

B. Defendant/Cross-Defendant Castro’s Demurrer to Defendant/Cross-Complainant Raab’s Cross-Complaint

Defendant/Cross-Defendant Castro demurs to Defendant/Cross-Complainant Raab’s Cross-Complaint on the ground the Cross-Complaint fails to plead facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. (Code Civ. Proc., § 430.10, subd. (e).)

Defendant/Cross-Complainant Raab argues Defendant/Cross-Defendant Castro has failed to satisfy the meet and confer requirement enumerated within Code of Civil Procedure section 430.41. (Code Civ. Proc., § 430.41.) Particularly, Defendant/Cross-Complainant Raab contends the requisite meet and confer obligations have not been fulfilled as Defendant/Cross-Defendant Castro’s counsel failed to meet and confer by telephone or in person, and, instead, sent a meet and confer correspondence by email. (Opp., at p. 3:26-4:3.)

Code of Civil Procedure section 430.41 requires, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer . . . .” (Code Civ. Proc., § 430.41, subd. (a).) Defendant/Cross-Complainant Raab is correct in noting Defendant/Cross-Defendant Castro did not meet and confer by telephone or in person prior to filing the present Demurrer. Instead, Defendant/Cross-Defendant Castro met and conferred by written correspondence. (Mathews Decl., ¶ 2, Ex. B [meet and confer correspondence sent by email].) Defendant/Cross-Defendant Castro requests that this Court overlook this procedural error, arguing Defendant/Cross-Defendant Castro attempted to remedy the aforementioned mistake and invited Defendant/Cross-Complainant Raab’s counsel to speak over the telephone with respect to the issues presented within the present Demurrer. (Reply Decl. of Mathews, Ex. D at p. 2.) Despite Defendant/Cross-Defendant Castro’s efforts, Defendant/Cross-Complainant Raab’s counsel did not entertain the request to telephonically meet and confer. (Id., Ex. D at pp. 1-2.)

The Court concludes Defendant/Cross-Defendant Castro’s failure to meet and confer in person or by telephone prior to filing the present Demurrer does not provide a basis to overrule the Demurrer. Code of Civil Procedure section 430.41, subdivision (a)(4) expressly states, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).) Defendant/Cross-Defendant Castro attempted to comply with the requisite meet and confer obligations by subsequently requesting a telephonic meet and confer meeting with Defendant/Cross-Complainant Raab, but to no avail. Given the parties have had an opportunity to meet and confer telephonically, and considering Defendant/Cross-Complainant Raab’s representation that he “will not be filing an Amended Cross-Complaint[,]” the Court finds no reason to overrule or continue the present Demurrer in order to require the parties to participate in further meet and confer by telephone.

Additionally, Defendant/Cross-Complainant Raab objects to the present Demurrer on the ground Defendant/Cross-Defendant Castro failed to timely serve the moving papers, in compliance with Code of Civil Procedure section 1005. (Code Civ. Proc., § 1005, subd. (b).) Specifically, Defendant/Cross-Complainant Raab contends, while the moving papers were required to be served no later than sixteen (16) court days prior to the hearing date on February 3, 2023, Defendant/Cross-Defendant Castro did not serve the moving upon Defendant/Cross-Complainant Raab until February 7, 2023. (Opp., at p. 4:5-13.)

Defendant/Cross-Defendant Castro concedes the moving papers were not served by the statutory deadline of February 3, 2023, and attributes the failure to an inadvertent typographical error within the email address of Defendant/Cross-Complainant Raab’s counsel. (Reply Decl. of Mathews, ¶ 4 [“[U]pon examining the electronic service of January 27, 2023, it was discovered that the letter “o” in “.com” was inadvertently omitted, resulting in the failed service on Cross-Complainant.”].) The Court, furthermore, concludes such failure to comply with the requirements articulated within Code of Civil Procedure section 1005, subdivision (b) is harmless, as Defendant/Cross-Complainant Raab has not been prejudiced by the timely filing of the instant Demurrer. However, should Defendant/Cross-Complainant Raab request additional time to file an Opposition, the Court will grant Defendant/Cross-Complainant Raab additional time

Defendant/Cross-Defendant Castro demurs to Defendant/Cross-Complainant Raab’s First Cause of Action for Contribution on the ground the Cross-Complaint fails to state facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. (Code Civ. Proc., § 430.10, subd. (e).) Specifically, Defendant/Cross-Defendant Castro argues Defendant/Cross-Complainant Raab has failed to plead facts sufficient to establish the requisite element of “money judgment”. (Dem., at p. 5:6-18.)

“The right of contribution is a creature of statute (Code Civ. Proc., § 875) and comes into existence only after rendition of a judgment declaring more than one defendant jointly liable to the plaintiff. [Citation.] It arises where ‘one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment.’ [Citation.]” (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1235, fn. 4.) “It has not been repeatedly held that the condition of this statute—a money judgment rendered jointly against two or more defendants—must exist before either may assert a right to contribution from the other.” (General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925.)

Upon review of Defendant/Cross-Complainant Raab’s Cross-Complaint, the Court concludes the First Cause of Action for Contribution is insufficiently pled because Defendant/Cross-Complainant Raab has failed to plead facts demonstrating a money judgment has been rendered against himself and Defendant/Cross-Defendant Castro as two or more joint tortfeasors. Based on the foregoing, Defendant/Cross-Defendant Castro’s Demurrer to the First Cause of Action for Contribution is SUSTAINED, with leave to amend.

Defendant/Cross-Defendant Castro’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Defendant/Cross-Defendant Castro’s Demurrer to Defendant/Cross-Complainant Raab’s Cross-Complaint is SUSTAINED, with leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court