Judge: Lisa R. Jaskol, Case: 20STCV15564, Date: 2023-08-29 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org.  Include the word "SUBMITS" in all caps and the Case Number in the Subject line.  In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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                                       Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.  This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.    
 
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Case Number: 20STCV15564    Hearing Date: March 13, 2024    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On April 23, 2020, Plaintiff Ofelia San Filippo (“Plaintiff”) filed this action against Defendants Cinkar Kitchen Cabinets, Inc. (“Cinkar”), Washington-Allport Properties, LLC (“Washington-Alport”), and Does 1-100 for negligence and premises liability. 

On May 29, 2020, Washington-Allport filed an answer. On June 16, 2020, Cinkar filed an answer. 

On March 29, 2021, the Court dismissed Washington-Allport without prejudice at Plaintiff’s request. 

On November 5, 2021, Plaintiff amended the complaint to include Defendants Washington-Allport as Doe 1, Margaret A. Rahm (“Margaret Rahm”) as Doe 2, and Emily R. Rahm as Doe 3 (“Emily Rahm”). 

On November 16, 2021, Plaintiff amended the complaint to include Defendants Elite Vinyl Windows, Inc. (“Elite”) as Doe 4, and Stereo Zone as Doe 5. 

On February 22, 2022, Washington-Allport filed an answer.  On March 11, 2022, SHNCM Corporation dba Stereo Zone filed an answer. 

On August 11, 2022, the Court sustained the demurrer of Margaret Rahm and Emily Rahm with 30 days leave to amend. 

On September 14, 2022, the clerk’s office dismissed Margaret Rahm and Emily Rahm without prejudice at Plaintiff’s request. 

On January 26, 2023, the Court dismissed Washington-Allport with prejudice on its ex parte request under Code of Civil Procedure section 851, subdivisions (f)(2) and (4), California Rules of Court, rule 3.1320(h), and Cano V. Glover (2006) 143 Cal.App.4th 326, 330. 

On August 29, 2023, the Court granted Plaintiff’s motion to file a first amended complaint adding Defendants Elite, Margaret Rahm, and Emily Rahm and making other changes. 

On September 6, 2023, Plaintiff filed a first amended complaint against Defendants Cinkar, Elite, Margaret Rahm, Emily Rahm, and Does 1-100 for negligence and premises liability. 

On September 15, 2023, the Court found that Cinkar’s settlement with Plaintiff was entered into in good faith and dismissed Cinkar. 

On February 2, 2024, Emily Rahm and Margaret Rahm (“Moving Defendants”) filed a demurrer and request for judicial notice to be heard on March 8, 2024.  On February 20, 2024, Plaintiff filed an opposition. On March 4, 2024, Moving Defendants filed a reply. 

Trial is scheduled for October 16, 2024. 

PARTIES’ REQUESTS 

Moving Defendants ask the Court to sustain the demurrer. 

Plaintiff asks the Court to overrule the demurrer. 

REQUEST FOR JUDICIAL NOTICE 

          Granted: 1, 3-4

          Denied: 2, 5-8 (see also below) 

LEGAL STANDARD 

A.   Demurrer 

Code of Civil Procedure section 430.10 provides in part: 

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: 

* * *

“(e) The pleading does not state facts sufficient to constitute a cause of action. 

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. . . .” 

(Code Civ. Proc., § 430.10, subds. (e), (f).) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.) 

B.   Negligence and premises liability 

 “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

“A defendant's control over property is sufficient to create a duty to protect owed to persons using the property.” (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 497, citing Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, 1166; Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 177 (Soto) [“the rationale being that whoever has the means to control the property can take steps to prevent the harm”].) “Conversely, absent any control of the property, a defendant cannot be held liable for a dangerous condition on that property.” (Ibid., citing Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1241 [“ ‘[t]he law does not impose responsibility where there is no duty because of the absence of a right to control’ ”]; Soto, supra, 45 Cal.App.5th at p. 177; Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084 [generally, there is no right to control another's property].) 

DISCUSSION 

A.   The original complaint 

The original complaint alleged that on or about September 10, 2018, defendants negligently, carelessly, and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned a sidewalk located at 11642 Washington Blvd., Whittier, CA., 90606, creating a dangerous condition that caused Plaintiff to trip and fall and suffer injuries. 

B.   The previous demurrer ruling 

On August 11, 2022, the Court sustained Moving Defendants’ demurrer to the original complaint, ruling that judicially noticed public property records showed that Moving Defendants had no interest in the property located at 11642 Washington Blvd., Whittier, CA., 90606.  Instead, Moving Defendants had an interest in the adjacent property located at 11646 Washington Blvd. 

The Court rejected Plaintiff’s argument that she had sufficiently alleged defendants controlled the premises where she fell because Plaintiff’s allegations of control were conclusory.  The Court granted leave to amend. 

C.   The first amended complaint 

The first amended complaint alleges the following: 

On or about September 10, 2018, defendants negligently, carelessly, and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned “certain Alleyway surfaces located at and around 11642 Washington Blvd., 11648 Washington Blvd., 11664 Washington Blvd., and 11646 Washington Blvd., Whittier, CA., 90606” (the “Properties”), creating a dangerous condition that caused Plaintiff to trip and fall and suffer injuries. 

Plaintiff is informed and believes and thereon alleges that Moving Defendants own property at 11646 and 11664 Washington Blvd., Whittier, CA 90606, and that these properties are on either side of the alleyway on which Plaintiff fell and was injured. 

D.   The demurrer to the first amended complaint 

1.    Sham pleading doctrine 

Moving Defendants argue the first amended complaint is a “sham pleading” because it alleges facts contrary to the allegations which the Court found defective in the original complaint.  Plaintiff’s original complaint alleged that Plaintiff fell on a sidewalk located at 11642 Washington Blvd., Whittier, CA 90606.  The first amended complaint, in contrast, alleges that Plaintiff fell in an alleyway located at and around 11642 Washington Blvd., 11648 Washington Blvd., 11664 Washington Blvd., and 11646 Washington Blvd., Whittier, CA., 90606. 

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations.]  A noted commentator has explained, ‘Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’ ” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426, fn. omitted (Deveny), quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2005) ¶ 6.708.)   

“The sham pleading doctrine is not ‘intended to prevent honest complainants from correcting erroneous allegations . . . or to prevent correction of ambiguous facts.’ ” (Deveny, supra, 139 Cal.App.4th at p. 426, quoting 5 Witkin, Cal. Procedure (4th ed. 1997) Amendment of Pleadings § 1122, pp. 577–578.)  “Instead, it is intended to enable courts ‘to prevent an abuse of process.’ ”  (Ibid. [holding sham pleading doctrine did not apply where plaintiff’s attorney “offered a plausible explanation for the amendment”].) 

Here, Plaintiff’s counsel has explained why the first amended complaint alleges facts that are different from the facts in the original complaint.  Plaintiff's counsel submitted a declaration stating: “Subsequent investigation has revealed that: (1) the incident took place in alleyway located at the intersection of four different properties and businesses located 11642, 11646, 11648, and 11664 Washington Boulevard; and (2) [Moving Defendants] own the two parcels of land located at 11646 Washington and 11664 Washington Boulevard.” 

Moving Defendants do not show that Plaintiff’s counsel’s explanation is implausible.  The Court concludes that the sham pleading doctrine does not apply here. 

2.    Service of motion for leave to file amended complaint 

Moving Defendants argue that Plaintiff did not serve her motion for leave to file an amended complaint on them.  The motion for leave to file an amended complaint included a proof of service stating that Plaintiff served Moving Defendants’ counsel.  The Court granted the motion on August 29, 2023. 

Moving Defendants have not previously informed the Court that Plaintiff did not serve the motion for leave to file an amended complaint on them.  They do not state when they first became aware that the Court had granted the motion.  On these facts, Moving Defendants have waived any objection to the first amended complaint based on the asserted lack of service of the motion for leave to file an amended complaint. 

3.    Request for judicial notice of Google Maps printouts 

Citing a decision by the United States Court of Appeals for the Ninth Circuit, Moving Defendants ask the Court to grant their request for judicial notice of Google Maps printouts which, Moving Defendants argue, show Moving Defendants “have no legally cognizable ties to the property where Plaintiff was allegedly injured.” 

This Court is required to follow the rulings of California’s appellate courts.  In Jolley v. Chase Home Finance LLC (2013) 213 Cal.App.4th 872 (Jolley), the Court of Appeal held the trial court erred in granting the defendant’s request for judicial notice of a document found on the FDIC’s website.  The Court of Appeal initially observed that the document (a purchase and assumption agreement) was attached to the declaration of the defendant’s counsel, who stated that the document was found on the FDIC’s website.  (Jolley, supra, 213 Cal.App.4th at p. 886.)  Yet “[t]he declarant was not a custodian of records, was not a party to the Agreement, gave no indication she was involved in negotiating or drafting it, and provided no background as to how she acquired knowledge of the document.”  (Ibid.) 

Here too, counsel is not a custodian of records.  And counsel did not explain the basis for Moving Defendants’ assertion that the Google Maps printouts contain “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of indisputable accuracy.”  (Evid. Code, § 452, subd. (h).) 

Indeed, “ ‘ [s]imply because information is on the Internet does not mean that it is not reasonably subject to dispute.’ ”  (Jolley, supra, 213 Cal.App.4th at p. 889, quoting Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1605, fn. 10.)  While “it might be appropriate to take judicial notice of the existence of the [Google Maps website], the same is not true of [the website’s] factual content.” (Searles Valley Minerals Operations, Inc. v. State Bd. Of Equalization (2008) 160 Cal.App.4th 514, 519 [court properly denied request for judicial notice of materials contained on website pages of American Coal Foundation and United States Department of Energy under Evid. Code, § 452, subd. (h)].) 

The Court denies Moving Defendants’ request for judicial notice of the Google Maps printouts.  As a result, the Court does not consider whether the Google Maps printouts support Moving Defendants’ demurrer. 

4.    Uncertainty 

Moving Defendants argue the first amended complaint is uncertain because it refers to the location where Plaintiff fell as the “sidewalk's Alleyway.”  (First amended complaint ¶ 20.)  The reference to a sidewalk appears to be a typographical error, possibly left over from the original complaint.  The first amended complaint elsewhere refers to the location as “the alleyway on which [Plaintiff] fell and was injured” (First amended complaint ¶ 4), “Alleyway surfaces” (First amended complaint ¶ 9), and “Alleyway” (First amended complaint ¶ 19).  The first amended complaint is sufficiently certain. 

The Court overrules the demurrer. 

CONCLUSION 

The Court OVERRULES the demurrer filed by Defendants Margaret A. Rahm and Emily R. Rahm. 

Defendants Margaret A. Rahm and Emily R. Rahm are ordered to file a responsive pleading within ten days of the hearing on the demurrer. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.