Judge Lee S. Arian, Case Number: 21STCV12551, Date: 2023-10-23 Tentative Ruling

On April 2, 2021, Plaintiff Frank Perez (“Plaintiff”) filed a Complaint against Defendant Carparts.com, Inc. (“Defendant”) alleging causes of action for (1) general negligence and (2) premises liability. The complaint arises from a March 23, 2023, fall from an “order picker” at Defendant’s warehouse.

On April 4, 2022, Defendant filed the operative First Amended Cross-Complaint (“FAXC”) against Cross-Defendants nGroup, Inc. and Roes 1 to 50, alleging causes of action for contractual indemnity, breach of contract—duty to defend, breach of contract, and declaratory relief.

On July 14, 2022, after hearing and oral argument, the Court granted Defendant’s motion to apply Texas law to Plaintiffs’ premises liability and negligence claims. In its July 14, 2022 Minute Order, the Court stated that “Texas has a greater interest than California” and “Texas has a greater interest in ensuring that a company operating in Texas is not exposed to greater liability for an action in which it was not the primary party at fault.” (07/14/22 Minute Order.)

On May 19, 2023, Plaintiff filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) negligence, (2) willful failure to warn, (3) dangerous condition of public property, and (4) premises liability.

On October 23, 2023, after hearing and oral argument, the Court granted Plaintiff’s motion for leave to file a Second Amended Complaint (“SAC”) and the Court denied Defendant’s motion for judgment on the pleadings as moot.

On October 23, 2023, Plaintiff filed the operative SAC against Defendant alleging causes of action for: (1) negligence, (2) willful failure to warn, (3) dangerous condition of public property, and (4) premises liability.

On November 28, 2023, Defendant filed and served the instant demurrer to the second and third causes of action in the SAC. On November 28, 2023, Defendant also filed and served an Answer to the SAC.

The demurrer is unopposed. Any opposition to the demurrer was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.)

Before filing a demurrer, the demurring party is required to meet and confer “in person or by telephone with the party who filed the pleading that is subject to the demurrer for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).)

Defendant’s counsel attests to telephonically meeting and conferring with Plaintiff’s counsel on October 23, 2023, as to the subject of the demurrer. (Hagle Decl., ¶ 6.) Thereafter meet and confer correspondence was unsuccessful as Plaintiff’s counsel did not respond to defense counsel’s meet and confer letter “setting forth the legal authorities supporting Defendant’s position.” (Id., ¶ 6; Exhibit A.)

“Under Evidence Code section 452, a court may take judicial notice of [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 572 [citations omitted].) “A court may take judicial notice of the [e]xistence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” (People v. Franklin (2016) 63 Cal.4th 261, 280 [citation omitted, internal quotations omitted].)

The Court GRANTS Defendant’s Request for Judicial Notice which requests that the Court take judicial notice of the ruling on Defendant’s Motion to Apply Texas Law.

Defendant contends that Plaintiff’s willful failure to warn claim fails under California and Texas law. Initially, the Court finds that this Court deemed Texas law to apply only to Plaintiff’s premises liability and general negligence claims. (Defendant’s RJN, Exhibit A at p. 5.) Defendant neither explicitly requested nor did the Court grant any request to apply Texas law to the causes of action for willful failure to warn or dangerous condition of public property. (Id.) Defendant only moved for an order to apply Texas law to “the first cause of action for general negligence and second cause of action for premises liability” as to the initial complaint in this action. (Id., Exhibit A at p. 1, 5.) No causes of action for willful failure to warn or dangerous condition of public property were asserted in the complaint. Thus, the Court will assess the viability of the second and third causes of action under California law.

The SAC alleges that Defendant required Plaintiff to use an “order picker” in performance of his job. (SAC, ¶ 22.) Plaintiff alleges that Defendant “failed to ensure that its equipment was in safe and working order. Defendant was required to . . . provide personnel working in its distribution center of warnings of risks associated with the equipment as well as to warn personnel of any broken, damaged, defective, and/or unmaintained equipment.” (Id., ¶ 23.) The SAC further alleges that “Defendant knew, or should have known that the order-picker used by Plaintiff was unsafe to use. Defendant failed to provide adequate warnings to personnel in its distribution center and continued to require those personnel to use its equipment.” (Id., ¶ 24.)

Plaintiff has failed to allege that the “order picker” created an unreasonable risk of harm which is required under CACI 1003. Thus, the Court finds that the second cause of action as currently alleged in the SAC is insufficient.

The Court SUSTAINS the demurrer of Defendant to the second cause of action in the SAC without leave to amend. Plaintiff has failed to oppose the demurrer and therefore has not met his burden in showing a reasonable possibility of successful amendment.

“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, [and] that the dangerous condition created a foreseeable risk of the kind of injury which was incurred.” (Gov. Code, § 835.) A plaintiff must also show that either: (a) A negligent or wrongful act or omission of an employee of a public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive knowledge of the dangerous condition . . . [and] a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835, subd. (a)-(b).)

The SAC contains no allegation that Defendant is a public entity. It follows that liability cannot be imputed for dangerous condition of public property because Defendant is not a public entity. There is also no allegation that Plaintiff’s injury occurred on public property.

Therefore, the Court SUSTAINS the demurrer of Defendant to the third cause of action in the SAC without leave to amend.

The demurrer of Defendant to the second and third causes of action in the SAC is SUSTAINED without leave to amend. The demurrer is unopposed which also leads to an inference that it has merit. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

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. Lee S. Arian

Judge of the Superior Court