Judge: Lisa R. Jaskol, Case: 22STCV31352, Date: 2024-12-02 Tentative Ruling
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Case Number: 22STCV31352 Hearing Date: December 2, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On September 26, 2022, Plaintiffs Darrin Mora and Lisa Mora (“Plaintiffs”) filed this action against Defendants Joel Graham (“Graham”), Cynthia Lavariere (“Lavariere”), VASU SPE 1, LLC and VASU SPE 2, LLC (“VASU entities”), CKE Restaurants Holdings, Inc. (“CKE”), PCH and XIMENO, LLC (“PCH”), Robert M. Jonas (“Jonas”), and Does 1-25 for wrongful death and survivorship.
On June 7, 2023, the Court found that this case (22STCV31352) and case number 22STCV31313 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 22STCV31313 became the lead case. The cases were assigned to Department 28 of the Spring Street Courthouse for all purposes.
On October 5, 2023, Plaintiffs filed a first amended complaint adding claims for negligent entrustment and premises liability.
On November 27, 2023, Lavariere filed a demurrer and a motion to strike. On January 2, 2024, Plaintiffs filed oppositions. On January 8, 2024, Lavariere filed replies. On February 8, 2024, the Court (1) sustained Lavariere’s demurrer to the wrongful death claim in Plaintiffs’ first amended complaint with 30 days leave to amend, (2) sustained Lavariere’s demurrer to the negligent entrustment claim in Plaintiffs’ first amended complaint with 30 days leave to amend, and (3) struck the punitive damages claim in Plaintiffs’ first amended complaint with 30 days leave to amend.
On March 11, 2024, Plaintiffs filed a second amended complaint against Defendants Graham, Lavariere, the VASU entities, CKE, PCH, Jonas, and Does 1-25 for wrongful death, negligent entrustment, survivorship, and premises liability. On May 6, 2024, Plaintiffs filed a notice of errata for the second amended complaint. On August 22, 2024, Plaintiffs filed an amended notice of errata.
On April 15, 2024, CKE filed an answer to the second amended complaint. On April 23, 2024, CKE filed a cross-complaint against Cross-Defendants Graham, Lavariere, the VASU entities, PCH, Jonas, Palisades Restaurant Group Inc. (“Palisades”), and Roes 1-100 for indemnity, apportionment, declaratory relief, and express indemnity. On September 20, 2024, Palisades filed an answer to the cross-complaint.
On June 6, 2024, Lavariere filed an answer to the second amended complaint.
On July 15, 2024, the Court denied Graham’s motion to strike portions of the second amended complaint. On July 25, 2024, Graham filed an answer to the second amended complaint.
On August 8, 2024, Plaintiffs amended the second amended complaint to include Defendants Byung No Ree as Doe 11 and Jung Hwa Ree as Doe 12.
On September 3, 2024, the Court sustained the demurrer filed by PCH and Jonas to the premises liability claim in Plaintiffs’ second amended complaint with 30 days leave to amend.
On September 5, 2024, the Court overruled the VASU entities’ demurrer to the premises liability claim in Plaintiffs’ second amended complaint.
On September 12, 2024, Plaintiffs filed a third amended complaint against Defendants Graham, Lavariere, the VASU entities, CKE, PCH, Jonas, Byung No Ree and Jung Hwa Ree, husband and wife, as Trustees and Subsequent Trustees of the 2004 Byung No Ree and Jung Hwa Ree Revocable Trust (“Trustees”), and Does 1-25 for negligence (wrongful death), wrongful death based on premises liability, negligent entrustment, and negligence (survival action).
On September 25, 2024, Plaintiffs amended the complaint to include Defendant Palisades as Doe 1.
On October 14, 2024, CKE and the VASU entities filed answers to the third amended complaint.
Also on October 14, 2024, the VASU entities filed an answer to CKE’s cross-complaint and also filed a cross-complaint against Cross-Defendants Graham, Lavariere, CKE, PCH, Jonas, and Roes 1-100 for equitable/implied indemnity, contribution/apportionment of fault, declaratory relief, breach of contract, and express indemnity. On November 12, 2024, CKE filed an answer to the cross-complaint.
On October 24, 2024, Trustees filed an answer to Plaintiffs’ third amended complaint. On November 25, 2024, Trustees filed an amended answer.
Trial is currently scheduled for February 6, 2025.
B. Demurrer and motion to strike
On October 10, 2024, PCH and Jonas (“Moving Defendants”) filed (1) a demurrer to the second and fourth causes of action (wrongful death based on premises liability and negligence (survival action), respectively) in Plaintiffs’ third amended complaint and (2) a motion to strike portions of the third amended complaint. The demurrer and motion to strike were set for hearing on November 12, 2024. On October 29, 2024, Plaintiffs filed oppositions. On November 5, 2024, Moving Defendants filed replies. The Court continued the hearing to December 2, 2024.
PARTIES’ REQUESTS
Moving Defendants ask the Court to sustain the demurrer to the second and fourth causes of action (wrongful death based on premises liability and negligence (survival action), respectively) in Plaintiffs’ third amended complaint and to strike portions of the third amended complaint.
Plaintiffs ask the Court to overrule the demurrer and deny the motion to strike.
LEGAL STANDARD
A. Demurrer
“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:
* * *
(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 2024) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).)
"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.)
B. Motion to strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .” (Code Civ. Proc., § 435, subd. (b)(1).) The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)
C. Premises liability and negligence
“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, 1158.)
D. Code of Civil Procedure sections 337.1 and 337.15
Code of Civil Procedure section 337.1 provides:
“(a) Except as otherwise provided in this section, no action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four years after the substantial completion of such improvement for any of the following:
“(1) Any patent deficiency in the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to, or survey of, real property;
“(2) Injury to property, real or personal, arising out of any such patent deficiency; or
“(3) Injury to the person or for wrongful death arising out of any such patent deficiency.
“(b) If, by reason of such patent deficiency, an injury to property or the person or an injury causing wrongful death occurs during the fourth year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than five years after the substantial completion of construction of such improvement.
“(c) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any action.
“(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.
“(e) As used in this section, “patent deficiency” means a deficiency which is apparent by reasonable inspection.
“(f) Subdivisions (a) and (b) shall not apply to any owner-occupied single-unit residence.”
(Code Civ. Proc., § 337.1.)
Code of Civil Procedure section 337.15 provides:
“(a) No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following:
“(1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property.
“(2) Injury to property, real or personal, arising out of any such latent deficiency.
“(b) As used in this section, “latent deficiency” means a deficiency which is not apparent by reasonable inspection.
“(c) As used in this section, “action” includes an action for indemnity brought against a person arising out of that person’s performance or furnishing of services or materials referred to in this section, except that a cross-complaint for indemnity may be filed pursuant to subdivision (b) of Section 428.10 in an action which has been brought within the time period set forth in subdivision (a) of this section.
“(d) Nothing in this section shall be construed as extending the period prescribed by the laws of this state for bringing any action. “(e) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement, at the time any deficiency in the improvement constitutes the proximate cause for which it is proposed to bring an action.
“(f) This section shall not apply to actions based on willful misconduct or fraudulent concealment.
“(g) The 10-year period specified in subdivision (a) shall commence upon substantial completion of the improvement, but not later than the date of one of the following, whichever first occurs:
“(1) The date of final inspection by the applicable public agency.
“(2) The date of recordation of a valid notice of completion.
“(3) The date of use or occupation of the improvement.
“(4) One year after termination or cessation of work on the improvement.
“The date of substantial completion shall relate specifically to the performance or furnishing design, specifications, surveying, planning, supervision, testing, observation of construction or construction services by each profession or trade rendering services to the improvement.”
(Code Civ. Proc., § 377.15.)
DISCUSSION
A. Moving Defendants’ demurrer to Plaintiffs’ second amended complaint
On September 3, 2024, in ruling on Moving Defendants’ demurrer to Plaintiffs’ second amended complaint, the Court found that Plaintiffs’ claims against Moving Defendants based on their status as the premises’ developers were barred by the four-year limitations period of Code of Civil Procedure section 337.1. The Court ruled that Plaintiffs had alleged the existence of a “patent” deficiency under Code of Civil Procedure section 337.1, which provides a four-year limitations period. The Court concluded that Plaintiffs had not alleged the existence of a “latent” deficiency under Code of Civil Procedure section 337.15, which provides a ten-year limitations period.
In addition, the Court found that the second amended complaint did not allege facts showing that PCH or Jonas concealed an allegedly dangerous hidden condition from the new owners. Therefore, the Court ruled that PCH transferred any ownership, possession, and control that PCH and Jonas exercised over the property to new owners in 2017, before the accident, relieving them of liability for post-transfer accidents based on their status as former owners, possessors, or controllers of the property.
B. The third amended complaint
The third amended complaint includes the following allegations:
1. General allegations
PCH, a California limited liability company, was formed on or about September 4, 2015, for the acquisition and redevelopment of property located at 4511 through 4525 East Pacific Coast Highway, Long Beach, California 90804 (“premises”).
When it was formed, PCH was insufficiently capitalized and was formed solely to act as a legal buffer against creditors and to protect Jonas from personal potential liability as a managing member and/or member of PCH.
Jonas was a licensed California attorney from January 5, 1972 to September 23, 2013.
Jonas and PCH were engaged in the development of the premises, including furnishing the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement, demolishing structures, changing the pavement, landscaping, off-site improvements, installation of traffic control devices, installation of exterior lighting, configuring driveways, and preparing a traffic report.
On or about July 20, 2017, PCH conveyed the property located at 4511 Pacific Coast Highway, Long Beach, California 90804, to Trustees.
On or about November 13, 2017, PCH conveyed 4525 East Pacific Coast Highway in Long Beach to the VASU entities.
2. Second cause of action: negligence (wrongful death)
PCH purchased the premises around September 2015 and began to redevelop the property. On or about, April 21, 2016, the City of Long Beach issued PCH a lot line adjustment, site plan review, and conditional use permit. As a condition for approval of the redevelopment of the 4511 East Pacific Coast Highway and 4525 East Pacific Coast Highway locations, PCH was required to install traffic control devices – including “no left turn” and “right turn only” signs and pavement markings – in accordance with the provisions of the Manual On Uniform Traffic Control Devices.
PCH did not install “no left turn” or “right turn only” signs or pavement markings at the egress from the premises at the westbound lanes of Pacific Coast Highway in Long Beach, in front of 4511 East Pacific Coast Highway. PCH’s failure to install “no left turn” or “right turn only” signs or pavement markings at that location “resulted in . . . latent deficienc[ies] in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property.” (TAC ¶¶ 41, 44, 47.)
On September 26, 2020, due to these latent deficiencies, Graham, while driving Lavariere’s Porsche, made an illegal left turn into the westbound lanes of Pacific Coast Highway in Long Beach in front of 4511 East Pacific Coast Highway and collided with Plaintiffs’ decedent Derrick Patrick Mora (“Decedent”), who was riding a motorcycle. Decedent suffered fatal injuries.
A dangerous condition existed in the middle of the eastbound and westbound traffic lanes on East Pacific Coast Highway in the absence of a “no left turn” sign, a “right turn only” sign, or pavement markings.
3. Fourth cause of action: negligence (survival action)
Plaintiffs are Decedent’s parents and his successors-in-interest.
C. Moving Defendants’ demurrer to Plaintiffs’ third amended complaint
1. Patent versus latent defect
In their demurrer to Plaintiffs’ third amended complaint, Moving Defendants argue that Plaintiffs have again failed to plead facts showing the alleged defect – failure to install a “no left turn” sign, a “right turn only” sign, or pavement markings – was latent. Plaintiffs oppose the demurrer, arguing their third amended complaint pleads facts alleging a latent defect.
“A ‘ “patent deficiency” means a deficiency which is apparent by reasonable inspection.’ ” (Delon Hampton & Associates, Chartered v. Superior Court (2014) 227 Cal.App.4th 250, 255 (Delon), quoting Code Civ. Proc., § 337.1, subd. (e).) “A patent defect can be discovered by the kind of inspection made in the exercise of ordinary care and prudence, whereas a latent defect is hidden and would not be discovered by a reasonably careful inspection.” (Ibid.; see Wagner v. State of California (1978) 86 Cal.App.3d 922, 927 [“A patent defect is one which can be discovered by such an inspection as would be made in the exercise of ordinary care and prudence”].) “ ‘The test to determine whether a construction defect is patent is an objective test that asks “whether the average consumer, during the course of a reasonable inspection, would discover the defect....” [Citations.] This test generally presents a question of fact, unless the defect is obvious in the context of common experience; then a determination of patent defect may be made as a matter of law (including on summary judgment). [Citations.]’ ” (Ibid., quoting Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256; see Tomko Woll Group Architects, Inc. v. Superior Court (1996) 46 Cal.App.4th 1326, 1339 (Tomko) [“The test to determine whether a deficiency is patent is based on the average consumer's reasonable expectations”].)
“Defects that are latent include an improperly designed heating and air conditioning system that causes uncontrollable temperature fluctuations.” (Delon, supra, 227 Cal.App.4th at p. 255, citing Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 758–759 [although the effects of the deficiency were obvious because the temperature was always too hot or too cold, the deficiency itself was unknown].) “A railing that gives way due to improper nailing concealed by putty and paint is a latent defect.” (Ibid., citing Hale v. Depaoli (1948) 33 Cal.2d 228.) “The absence of a vapor barrier, which caused the siding on a building to buckle, ‘was a latent defect, hidden from view beneath the siding.’ ” (Id. at pp. 255-256, quoting Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 645–646.)
“Defects that are patent include the absence of a fence around a swimming pool.” (Delon, supra, 227 Cal.App.4th at p. 256, citing Mattingly v. Anthony Industries, Inc. (1980) 109 Cal.App.3d 506, 510–511 [“[t]he swimming pool and the dangers attendant thereto as they relate to the absence of fencing are matters of such common experience that assuming, arguendo, the absence of a fence constitutes a deficiency in our situation, it is a patent deficiency”].) “Raised paving stones on a patio are a patent defect. (Ibid., citing Tomko, supra, 46 Cal.App.4th at p. 1339 [“Pavement, and the dangers attendant to it, are matters of such common experience that a visible defect substantial enough to cause a pedestrian to trip and fall constitutes a patent defect”].) “Defective construction of a landing that allows water to pool on the landing and to drain into an office is a patent defect.” (Ibid., citing Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1470–1471.)
“Defects involving stairs and guardrails have also been found to be patent.” (Delon, supra, 227 Cal.App.4th at p. 256; see Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 965, 971-972 [absence of contrast marking stripes on theatre stairs where plaintiff fell was patent defect where contrast marking stripes were required by the plans for the theatre and by the California Building Standards Code but were never placed on the stairs]; The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 36 [alleged defects in spacing between guardrails were patent because “the spacing of the rails was obvious, and the dangers attendant to climbing through guardrails on a catwalk are ... a matter of common experience”].)
In Delon, the plaintiff fell at a rail station and sued the MTA, alleging the stairwell was “too small” and that its banister was “too low.” (Delon, supra, 227 Cal.App.4th at p. 252.) The MTA cross-complained against Delon Hampton & Associates, Chartered (“Hampton”), which provided design and/or construction services at the station. Hampton demurred to the first amended cross-complaint based on the four-year limitation period of Code of Civil Procedure section 337.1. (Ibid.) The trial court overruled the demurrer. (Ibid.)
Holding that the alleged defects were patent, the Court of Appeal granted Hampton’s petition for writ relief. The Court of Appeal reasoned that “[t]he height of the banister and the width of the stairwell are not hidden. They are open and apparent defects, and the danger of ascending or descending stairs is a matter of common experience. [Citation.] In addition to the defects being visually accessible, simple use of the stairwell would inform the average consumer whether the banister was too low or the stairwell was too narrow.” (Delon, supra, 227 Cal.App.4th at p. 256.) The court rejected MTA’s contention that whether the defects are patent can be established only through a “ ‘technical reading of the applicable building codes,’ explaining that “[t]he existence of California Building Standards Code provisions concerning stairwells only underscores that the defects should have been discovered on a reasonable inspection.” (Id. at p. 257.) Therefore, the four-year limitation provision of Code of Civil Procedure section 337.1 barred MTA’s cross-complaint against Hampton. (Ibid.)
Here too, a reasonable inspection would have revealed the danger inherent in turning left against double yellow lines while exiting the premises and attempting to merge onto the highway. Similarly, a reasonable inspection would have revealed the lack of signage or pavement markings designed to prevent drivers from attempting this risky maneuver.
The defect was patent. The four-year limitations provision of Code of Civil Procedure section 337.1 therefore bars Plaintiffs’ claims against Moving Defendants for wrongful death based on premises liability and negligence (survival action). The Court sustains Moving Defendants’ demurrer without leave to amend.
2. Corporations Code section 17703.04
In light of the Court’s ruling above, the Court concludes that it is not necessary to consider Moving Defendants’ argument based on Corporations Code section 17703.04.
D. Moving Defendants’ motion to strike
Moving Defendants move to strike the following allegations from the third amended complaint:
“. . . at the time of formation of [PCH], that said limited liability company was insufficiently capitalized and was formed solely to act as a legal buffer of creditors of the limited liability company, so that [Jonas] might avoid the personal potential liability for any tortious acts of nonfeasance, misfeasance and/or malfeasance which might be committed during development, as managing member and/or member of [PCH . . . .” (TAC ¶ 8.)
According to Moving Defendants, these allegations exceed the scope of amendment which the Court granted when it sustained Moving Defendants’ demurrer to the second amended complaint with leave to amend.
“ ‘Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.’ ” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456 (Zakk), quoting Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)
In Zakk, the trial court sustained the defendants’ demurrers to the second amended complaint on statute of frauds grounds and granted the plaintiff leave to add a quantum meruit cause of action. (Zakk, supra, 33 Cal.App.5th at p. 456.) The plaintiff instead amended the complaint to add a promissory estoppel claim, which the trial court then dismissed. On appeal, the plaintiff argued that even though the trial court did not directly give him leave to add a promissory estoppel cause of action, he was allowed to do so because that cause of action “directly responds to the Trial Court's concerns” regarding the statute of frauds because promissory estoppel is not subject to the statute. (Ibid.) The Court of Appeal rejected the argument, holding that “[t]he granting of leave to amend after a demurrer is sustained on one ground does not give the plaintiff a license to add any possible cause of action that might not be subject to dismissal on that ground. Otherwise, there would be virtually no limitation on amendments following the sustaining of a demurrer.” (Ibid. [affirming trial court’s order dismissing promissory claim which plaintiff added without leave of court].)
Here, Plaintiffs have not shown that the Court granted them leave to add the alter ego allegations. The Court grants the motion and strikes the challenged language from the third amended complaint.
CONCLUSION
The Court SUSTAINS the demurrer of Defendants PCH and XIMENO, LLC and Robert M. Jonas to the second and fourth causes of action (wrongful death based on premises liability and negligence (survival action), respectively) in the third amended complaint filed by Plaintiffs Darrin Mora and Lisa Mora without leave to amend.
The Court GRANTS the motion to strike filed by Defendants PCH and XIMENO, LLC and Robert M. Jonas and strikes the following language from the third amended complaint filed by Plaintiffs Darrin Mora and Lisa Mora without leave to amend:
“. . . . at the time of formation of Defendant PCH AND XIMENO, LLC (hereinafter “PCH” or “Developers”), that said limited liability company was insufficiently capitalized and was formed solely to act as a legal buffer of creditors of the limited liability company, so that Defendant ROBERT MICHAEL JONAS might avoid the personal potential liability for any tortious acts of nonfeasance, misfeasance and/or malfeasance which might be committed during development, as managing member and/or member of PCH AND XIMENO, LLC . . . .”
Moving parties are ordered to give notice of the Court’s ruling.
Moving parties are ordered to file proof of service of the Court’s ruling within five days.