Judge: Michael E. Whitaker, Case: 21STCV05201, Date: 2022-08-08 Tentative Ruling

Case Number: 21STCV05201    Hearing Date: August 8, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 







August 8, 2022




Motion for Judgment on the Pleadings


Defendants NewVac Lift, LLC and RD Waldman Construction, Inc.


Plaintiffs Liam Umer and Shan Umer




Plaintiffs Liam Umer (“Liam”) and Shan Umer (collectively, “Plaintiffs”) sued Defendants NewVac Lift, LLC and RD Waldman Construction, Inc. (collectively, “Defendants”) based on injuries Plaintiffs allege Liam sustained in an elevator installed, constructed, or placed in a residential premises by Defendants.  Defendants move for judgment on the pleadings on Plaintiffs’ sole cause of action for negligence.  Plaintiffs oppose the motion.




A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)


Foremost, Plaintiffs contend that Defendants’ motion is untimely.  The Court agrees. “No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”  (Code Civ. Proc., § 438, subd. (e).)   Here, per the order filed on March 4, 2021, the Court set the initial trial on August 9, 2022.  Therefore, under Section 438, the last day for the Court to hear Defendants’ motion was July 11, 2022, and Defendants did not seek or obtain leave of court to have the motion heard after July 11.  (See generally Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4th 13, 25, fn. 4.)


            Notwithstanding the procedural defect, Defendants argue that, as independent contractors, they cannot be found liable for Plaintiffs’ injuries after their work of installing, constructing, or placing the elevator had been “completed, turned  over to, and accepted by the owner.”  (See Kolburn v. P.J. Walker Co. (1940) 38 Cal.App.2d 545, 550.)  In opposition, Plaintiffs assert that Defendants’ reliance on the “completed and accepted” doctrine is misplaced as it is no longer the relevant standard for a contractor’s liability to third parties for their negligence in construction.  The Court agrees.   


            First, the Court notes that, from the face of the complaint, no facts are alleged to establish that the “completed and accepted” doctrine would apply.  Specifically, Plaintiffs’ complaint does not allege who owns the subject premises, and whether the owner of the property accepted it following the improvements made by Defendants.  (See Complaint, 4.)   In relevant part, Plaintiffs allege:


Plaintiff LIAM UMER was injured and sustained damages as a direct legal cause of the negligence of Defendants NEWVAC LIFT LLC, a Limited Liability Company, R.D. WALDMAN CONSTRUCTION, INC., a Corporation, and DOES 1 to 25, and each of them, and but for the negligence of Defendants NEWVAC LIFT LLC, a Limited Liability Company, R.D. WALDMAN CONSTRUCTION, INC., a Corporation, and DOES 1 to 25, and each of them, Plaintiff LIAM UMER would not have been injured and sustained damages.


Second, in Dow v. Holly Manufacturing Co., our Supreme Court found that the modern tendency is to hold building contractors to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by their negligence even after acceptance of the work.


It should first be observed that the owner for whom the house was built by defendant general contractor had accepted the house and it had been transferred by him, with title finally vesting in the Dows. At one time this was an obstacle to recovery from the general contractor on the theory that there was no privity of contract between the contractor and the person injured, but it is no longer the law, as obviously, the problem presented is the same as where a manufacturer negligently manufactures an article which subsequently injures someone other than the purchaser of the article.  Commenting on this subject a well-known text writer states: ‘Where the defendant has in fact misperformed his contract, and is to be charged with ‘misfeasance’ resulting in injury to a third person, it is to be expected that liability to third persons will be found more readily; and in general this has been true. Even here, however, the great obstacle has been the notion of the necessity of ‘privity of contract’ inherited from the misinterpretation of Winterbottom v. Wright.  All this is now ancient history. The analogy of the seller has prevailed, and the late decisions are agreed that the man who negligently repairs a vehicle or any other chattel is liable to others who may be injured because of that negligence, to the same extent as if he had made and sold the chattel in the first instance.' (Prosser on Torts, (2d ed.) p. 517.) And with respect to building contractors: ‘Until quite recent years it was the prevailing rule that the contractor would be liable for any injury resulting from his negligence before his work was completed, but that his responsibility was terminated and he was not liable to any third person once the structure was completed and accepted by the owner.


‘The present state of the law is not altogether clear because of the survival of so many of these exceptions, which afford an opportunity to hold the defendant liable without stating any general rule. It appears, however, that the analogy of MacPherson v. Buick Motor Co. is at last being accepted. Several recent decisions have placed building contractors on the same footing as sellers of goods, and have held them to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by the negligence, even after acceptance of the work.’ (Prosser on Torts (2d ed.) p. 517.) 


It has been held that the owner of property cannot escape liability for a dangerous condition on his property by having an independent contractor assume the duty of construction or repairing a building or chattel. There is no reasonable distinction between the owner's inability to escape liability and that of the contractor. The contractor, equally with the owner of the property, has supervision over the entire building and its construction, including the work performed by a subcontractor, and where he negligently creates a condition, either by himself or through a subcontractor, he is primarily responsible for that condition and the consequences that may follow from it. He is in full control of the construction and knows or should know what is being placed in the building. Indeed, what is placed there is peculiarly within his knowledge, and where, as here, it involves a defective appliance which is covered and hidden by the walls in the course of construction, the responsibility for such defect should rest upon him as well as on the subcontractor.


(Dow v. Holly Manufacturing Co. (1958) 49 Cal.2d 720, 724-727 [cleaned up].)


            Accordingly, the Court denies, procedurally and substantively, Defendants’ motion for judgment on the pleadings for the reasons stated above.  Defendants shall provide notice of the Court’s ruling and file a proof of service of such.