Judge: Kerry Bensinger, Case: 21STCV30976, Date: 2023-08-09 Tentative Ruling

Case Number: 21STCV30976    Hearing Date: August 9, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 9, 2023                       TRIAL DATE:  September 20, 2023

CASE:                         Donna Diaz v. Rodeo Collections, LTD., et al.

CASE NO.:                 21STCV30976

DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:               Defendant Specialized Elevator Services, LLC

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On August 20, 2021, Plaintiff, Donna Diaz, filed this action against Defendants, Rodeo Collection, LTD. (“Rodeo Collection”) and Specialized Elevator Services, LLC (“SES”) for injuries Plaintiff allegedly sustained when tripping and falling as she entered an unleveled elevator at the Rodeo Collection at 421 North Rodeo Drive.  On May 31, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”).  The FAC asserts causes of action for (1) Premises Liability, (2) Negligent Hiring, and (3) Common Carrier Negligence.

On July 12, 2023, SES filed this demurrer to the Third Cause of Action for Common Carrier Negligence in the FAC. 

The demurrer is unopposed.

II.        LEGAL STANDARD FOR DEMURRER  

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)   Judicial Council forms are not immune to demurrer.  (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) 

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “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.)   

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)  

A failure to oppose a motion may be deemed a consent to the granting of the motion.  (Cal. Rules of Court, rule 8.54, subd. (c).)

III.      DISCUSSION

A.  Meet and Confer

Defense counsel has complied with the meet and confer requirement.¿ (See Declaration of Melissa K. Mixer.)

E.  Analysis

SES argues that the demurrer to the Third Cause of Action for Common Carrier Negligence should be sustained without leave to amend because SES is not a common carrier with respect to the subject elevator.   The Court agrees.  “Everyone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.”  (Civ. Code, § 2168.)  Owners and operators of elevators are common carriers.  (See, e.g., Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1131.)  “[A] common carrier within the meaning of Civil Code section 2168 is any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit. [Citations.]” (Squaw Valley Ski Corporation v. Superior Court (1992) 2 Cal.App.4th 1499, 1508.)  “Factors bearing on a party’s common carrier status include (1) whether the party maintained an established place of business for the purpose of transporting passengers; (2) whether the party engaged in transportation as a regular and not as a casual or occasional undertaking; (3) whether the party advertised its transportation services to the general public; and (4) whether the party charged standard rates for its service. The party need not have a regular schedule or a fixed route to be a common carrier, nor need the party have a transportation license. [¶] Not all these factors need be present for the party to be a common carrier subject to the heightened duty of care.”  (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 339.)

Here, Plaintiff fails to allege any of the factors that would establish that SES is a common carrier.  There are no allegations that SES maintained a regular business; that SES advertises its services to the general public which includes usage of the subject elevator; or that SES charges a standard fee for its service or otherwise generates profit from customers who use the premises of the subject property.  In sum, the Third Cause of Action is the FAC does not state facts sufficient to constitute a cause of action for common carrier negligence against SES.

Accordingly, the demurrer is sustained.

IV.        CONCLUSION

Accordingly, the demurrer is SUSTAINED.  Leave to amend is GRANTED.

Plaintiff is to file and serve the Second Amended Complaint within 20 days of this order.

SES is to file and serve their responsive pleading within 30 days of service of the Second Amended Complaint.

Moving party to give notice, unless waived. 

Dated:   August 9, 2023                                             ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.