Judge: Maurice A. Leiter, Case: 23STCV29408, Date: 2024-04-30 Tentative Ruling

Case Number: 23STCV29408    Hearing Date: April 30, 2024    Dept: 54

Hearing Date: April 30, 2024

Department 54, Judge Maurice Leiter

Demurrer to Complaint

Moving Party: Defendant Blue Legacy Construction, Inc.

Responding Party: Plaintiff Plaintiff Safeco Insurance Company of America

T/R:     DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers and opposition.

BACKGROUND

On December 1, 2023, Plaintiff Safeco Insurance filed a complaint against Defendant Blue Legacy Construction, Inc., asserting causes of action for (1) negligence and (2) negligence per se. Plaintiff alleges Defendant negligently performed roof work with a torch or other heating device, causing fire damage at property owned by Plaintiff’s insured.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendant demurs to the complaint on the grounds that Plaintiff has failed to allege negligence and that negligence per se is not a cause of action. To plead a cause of action for negligence, one must allege (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) Plaintiff alleges Defendants breached their duty to perform roofing work with reasonable care by negligently operating a torch or other heating device, causing fire damage. This is sufficient to allege a cause of action for negligence. Plaintiff may allege negligence per se as an alternative theory of liability.

Defendant’s demurrer is OVERRULED.