Judge: Lisa R. Jaskol, Case: 22STCV28160, Date: 2025-05-13 Tentative Ruling
Case Number: 22STCV28160 Hearing Date: May 13, 2025 Dept: 28
Having considered the demurring, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On August 29, 2022, Plaintiff Eric Smith filed this action against Defendants City of Los Angeles (“City”) and Does 1-100 for dangerous condition of public property.
On November 18, 2022, the City filed an answer.
On August 6, 2024, the Court found that this case (number 22STCV28160) and case number 23STCV24237 are related within the meaning of California Rules of Court, rule 3.300(a). The cases were assigned to Department 32 at the Spring Street Courthouse for all purposes. The cases were later reassigned to Department 28 at the Spring Street Courthouse.
On October 11, 2024, the City filed a cross-complaint against Cross-Defendants Khashayar Eshraghi, Braazo Pizza, Inc., Albert Ardashesian, and Roes 1-10 for apportionment of fault, indemnification, negligence, and declaratory relief. On October 29, 2024, the City amended its cross-complaint to replace the incorrect name Braazo Pizza, Inc. with Cross-Defendant’s correct name, Braazo Foods d.b.a. Braazo Pizza.
On January 23, 2025, the Court dismissed Cross-Defendants Braazo Foods d.b.a. Braazo Pizza and Albert Ardashesian from the cross-complaint without prejudice at the City’s request.
On January 28, 2025, the City amended its cross-complaint by including Cross-Defendants Tigran Basambekyan as Roe 1 and TMA Western Inc. as Roe 2. On April 9, 2025, Cross-Defendant Tigran Basambekyan, appearing without counsel, filed an answer to the cross-complaint purportedly on behalf of Braazo Pizza - TMA Western Inc.
B. This motion
On January 16, 2025, Cross-Defendant Khashayar Eshraghi (“Eshraghi”) filed a demurrer. The demurrer was set for hearing on February 13, 2025. On January 30, 2025, the City filed an opposition. The Court continued the hearing to March 25, 2025. On March 3, 2025, Eshraghi filed a late reply. The Court continued the hearing to May 13, 2025.
PARTIES’ REQUESTS
Eshraghi asks the Court to sustain the demurrer to the City’s cross-complaint.
The City asks the Court to overrule the demurrer.
LEGAL STANDARD
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:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(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.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.”
(Code Civ. Proc., § 430.10.)
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 2024) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).)
“The demurrer should not be sustained where a plaintiff can cure a defective complaint by amendment or where the pleading, liberally construed, can state a cause of action.” (Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297.)
"A demurrer may be filed to one of several causes of action in the complaint, without answering the other causes of action." (Cal. Practice Guide, supra, ¶ 7:34.1, p. 7(l)-19.)
“ ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.’ ” (Cal. Practice Guide, supra, ¶ 7:40, p. 7(l)-21, quoting C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
DISCUSSION
A. Plaintiff’s complaint
Plaintiff’s complaint includes the following allegations:
On October 7, 2021, at approximately 11:30 p.m., the City left a stack of steel plates in proximity to bicycle lanes of traffic on northbound Main Street, 307 feet south of 7th Street. Plaintiff was riding an electric scooter in the northbound protected bicycle lane of Main Street. When a pedestrian appeared unexpectedly in front of Plaintiff, he was forced to veer to his right and struck the pile of steel plates that had been left in the roadway. Plaintiff was thrown from his scooter and struck the roadway, suffering injury.
The stacking and storage of steel plates in or around a public roadway and bicycle lane created a dangerous condition and a reasonably foreseeable risk of injury to the public, including Plaintiff. The City either created the dangerous condition by negligently storing the steel plates in the roadway or the City had notice of the dangerous condition with sufficient time to correct the dangerous condition and prevent Plaintiff’s accident.
B. The City’s cross-complaint
The cross-complaint includes the following allegations on the City’s general negligence claim against Eshraghi:
On October 7, 2021, on Main Street at or near W. 7th Street in Los Angeles, Plaintiff was driving a scooter. Eshraghi and Roes 1-10 negligently, carelessly, recklessly, and unlawfully walked, moved, and otherwise operated in such a manner in front of Plaintiff as to cause Plaintiff to veer to his right and strike a pile of steel plates that had been left in the roadway, suffering injuries.
The cross-complaint names Eshraghi as a cross-defendant in the first cause of action for indemnification, second cause of action for apportionment of fault, third cause of action for declaratory relief, and fifth cause of action for general negligence.
C. Eshraghi’s request for judicial notice
Eshraghi asks the Court to take judicial notice of (1) Plaintiff’s complaint in this case (number 22STCV28160), (2) Plaintiff’s complaint against Eshraghi in the related case (case number 23STCV24237), (3) notice of the Court’s order finding case numbers 22STCV28160 and 23STCV24237 are related, and (4) the Court’s October 1, 2024 order dismissing Plaintiff’s complaint against Eshraghi in case number 23STCV24237.
The Court grants the request. (Evid. Code, §§ 452, subd. (d), 453.)
D. The demurrer
Eshraghi
argues that the Court’s dismissal of the complaint against Eshraghi in the
related case (number 23STCV24237) had the effect of dismissing Eshraghi or
relieving him from liability in this case (number 22STCV28160) because the
Court related the two cases.
In addition, Code of Civil Procedure section 877, subdivision (b), on which Eshraghi relies, did not relieve Eshraghi from “liability for any contribution to any other parties” (Code Civ. Proc., § 877, subd. (b)) because the Court did not find that Eshraghi entered into a good faith settlement with Plaintiff under Code of Civil Procedure section 877.6.
The Court sustains Eshraghi’s demurrer to the City’s negligence claim. The City has not pleaded facts showing that Eshraghi owed or breached a duty to the City. In all other respects, the Court overrules the demurrer.
CONCLUSION
The Court SUSTAINS Cross-Defendant Khashayar Eshraghi’s demurrer to Cross-Complainant City of Los Angeles’s fifth cause of action for general negligence with 30 days leave to amend.
In all other respects, the Court OVERRULES Cross-Defendant Khashayar Eshraghi’s demurrer to Cross-Complainant City of Los Angeles’s cross-complaint.
Moving party is ordered to give notice of the Court’s ruling.
Moving party is ordered to file the proof of service of this ruling within five days.