Judge: Lee S. Arian, Case: 23STCV09394, Date: 2023-11-21 Tentative Ruling

Case Number: 23STCV09394    Hearing Date: November 21, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant CBRE Group, Inc. (“CBRE”)

RESPONDING PARTY: Plaintiff Cynthia Lerma (“Plaintiff”)  

I.            INTRODUCTION

On April 27, 2023, Plaintiff Cynthia Lerma (“Plaintiff”) filed a complaint against Defendants Eagle Rock Plaza Owner LLC, Eastern Real Estate LLC, Atlas Capital Group, LLC, CBRE Group, Inc. (“CBRE”), and Does 1 to 100, arising out of an incident on June 7, 2022, in which Plaintiff suffered a slip and fall while climbing an escalator on Defendants’ property. The operative First Amended Complaint (“FAC”), filed on August 16, 2023, alleges causes of action for: (1) negligence/premises liability; and (2) violation of duty as common carrier—strict liability.   

          On October 10, 2023, CBRE filed the instant demurrer as to the second cause of action on the ground that Plaintiff failed to allege that CBRE operated the subject escalator and thus failed to show that it was a common carrier under California Civil Code § 2100. That same day, CBRE filed the instant motion to strike the request for statutory attorney’s fees appearing in the prayer for relief in the FAC. On November 7, 2023, Plaintiff filed an opposition to CBRE’s demurrer. However, to date, Plaintiff has not filed an opposition to CBRE’s motion to strike.

The Meet and Confer Requirement

           Before filing a demurrer, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or 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.)

CBRE’s counsel attests to having telephone correspondence with Plaintiff’s counsel and having not resolved the matters at issue in the demurrer. (Demurrer, Rostamlou Decl., ¶¶ 3-5.) The requirement is met.

Additionally, the parties conferred regarding attorney’s fees and Plaintiff indicated that the inclusion of the attorney’s fees request in the FAC was a mistake and that she does not intend to seek attorney’s fees going forward. (Motion to Strike, Rostamlou Decl., ¶¶ 3-5.) Therefore, and considering Plaintiff’s lack of opposition to the motion to strike, CBRE’s motion to strike the request for attorney’s fees in the FAC, at page 15, line 16, ¶ 2, is GRANTED.

II.          LEGAL STANDARD ON DEMURRER

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The 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.) A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10(e).) 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, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)  

III.        DEMURRER

Defendant CBRE contends that the FAC fails to plead facts showing that CBRE, as manager of the property, should be held liable as a common carrier when it is not the operator of the subject escalator. In opposition, Plaintiff contends its allegations that all the Defendants, including CBRE, “owned, operated, managed, controlled…” the subject escalator are sufficient to allege CBRE owed a duty as a common carrier.

“A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civil Code § 2100.)¿¿ “[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.” (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1508 (a ski lift operator is a common carrier, since it holds itself out to the public as a transporter of goods or persons from place to place).  In Treadwell v. Whittier (1889) 80 Cal. 574, the California Supreme Court held that the owner of an elevator is a common carrier.  The court reasoned: “[p]ersons who are lifted by elevators are subjected to great risks to life and limb. They are hoisted vertically, and are unable, in case of the breaking of the machinery, to help themselves. The person running such elevator must be held to undertake to raise such persons safely, as far as human care and foresight will go. The law holds him to the utmost care and diligence of very cautious persons, and responsible for the slightest neglect.” (Id. at 591.)

          Here, the Court finds that the common carrier cause of action is sufficiently pled. Contrary to CBRE’s position, the FAC does not simply allege that CBRE is a manager. “Defendants… [including CBRE], and each of them, owned and/or operated the [subject escalator] which malfunctioned resulting in foreseeable injury to Plaintiff.” (FAC ¶ 41.) CBRE contends that the FAC “fails to provide support for the claim the [sic] CBRE” was the operator. However, Plaintiff is under no obligation at the complaint stage to provide evidentiary support for its allegations. Rather, the Court can appropriately deem true that CBRE is a common carrier based on Plaintiff’s allegation that CIBRE is an owner and operator of the subject elevator here.  (See Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 200 (“[i]n assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true.”); Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883 (in determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts)). 

Accordingly, the demurrer of Defendant CBRE is OVERRULED as to the second cause of action for common carrier. 

VI.     CONCLUSION

The Court OVERRULES the demurrer of Defendant CBRE to the second cause of action in the FAC. However, CBRE’s motion to strike the request for statutory attorney’s fees is GRANTED.

Defendant CBRE is ordered to give notice of this ruling.

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.

      Dated this 21st day of November 2023