Judge: Michael E. Whitaker, Case: 21STCV22840, Date: 2022-08-19 Tentative Ruling

Case Number: 21STCV22840    Hearing Date: August 19, 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. 

TENTATIVE RULING

MOTION

Plaintiffs Andrew Rosen (“Andrew”) and Julie Rosen (“Julie”) sued defendants Sam Youngs Edgerton, III and Stacey Ann Carter based on a trip and fall.  Plaintiffs later named defendant Smitty and Gentil, Inc. dba Smith Properties (“Smith Properties”) via Doe amendment as “Doe 1.”  Smith Properties demurs to the first cause of action for negligence, second cause of action for premises liability, and third cause of action for loss of consortium in Plaintiffs’ first amended complaint.  Plaintiffs oppose the demurrer.

Smith Properties objects to Plaintiffs’ service of the opposition on Smith Properties as untimely.  Per Code of Civil Procedure section 1005, all papers opposing a motion shall be filed with the Court and a copy served on each party at least nine court days before the hearing.  (Code Civ. Proc., § 1005, subd. (b).)  Based on the original hearing date of August 16, 2022, Plaintiffs were thus required to file and serve their opposition by no later than August 3, 2022.  Plaintiffs’ proof of service filed in connection with the opposition states Plaintiffs served the opposition on Smith Properties on August 2, 2022, electronically.  According to Smith Properties, however, Plaintiffs did not serve the opposition until August 5, 2022.  Smith Properties does not offer evidence in support of its contention.  Notwithstanding, has nevertheless submitted a reply to the opposition with full briefing on the merits.  The Court therefore concludes that Smith Properties  will not be prejudiced by the Court’s consideration of the merits of Plaintiffs’ opposition, and exercises its discretion to do so.

ANALYSIS

1. OVERVIEW

    

   “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

    

   A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

    

   Here, Smith Properties demurs to the first cause of action for negligence, second cause of action for premises liability, and third cause of action for loss of consortium for failure to state facts sufficient to constitute a cause of action and as uncertain.  Specifically, Smith Properties argues that Smith Properties is not individually named in the complaint and the first through third causes of action fail to allege that Smith Properties owed a duty to Plaintiffs and breached that duty. 

    

   In opposition, Plaintiffs contend that paragraph 11 of the first amended complaint alleges that Smith Properties is related to Andrew as the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers, and/or controllers of the subject premises, such that a duty is assumed and imposed by law by virtue of the special relationship.  Plaintiffs next contend that paragraphs 13 through 15 allege that Smith Properties breached said duty.   

    

2. NEGLIGENCE

    

   Smith Properties argues that Smith Properties is not individually named in the complaint and the first cause of action fails to allege that Smith Properties owed a duty to Plaintiffs and breached that duty.  In opposition, Plaintiffs contend that paragraph 11 of the first amended complaint alleges that Smith Properties is related to Andrew as the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers, and/or controllers of the subject premises, such that a duty is assumed and imposed by law by virtue of the special relationship.  Plaintiffs next contend that paragraphs 13 through 15 allege that Smith Properties breached said duty.   

    

   “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up].) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are limits to the generality with which a plaintiff is permitted to state his cause of action, and the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.” (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 1010 [cleaned up].)

    

   Paragraph 11 alleges, “Plaintiffs are informed and believe, and thereon allege, that at all relevant times herein, the Defendants were the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers, and/or controllers, of a residential property located at 509 N Helberta Ave., City of Redondo Beach, County of Los Angeles, State of California. (the “subject premises”).”  (First Amended Complaint, ¶ 11.) 

    

               Paragraphs 13 through 15 of the first amended complaint allege as follows:

    

   On 12 June 2020, Plaintiff ANDREW was lawfully on the subject premises, being a tenant thereof. On said date, Plaintiff ANDREW was descending a common stairway in the subject premises when, suddenly and without warning, Plaintiff ANDREW tripped and/or slipped and fell violently down the stairs, causing Plaintiff ANDREW to sustain bodily injuries requiring medical attention and treatment

    

   The Defendants, and each of them, fully and well knew, or should have known in the exercise of reasonable care, that the structures and/or components and/or other parts of the subject premises were in a dangerous and defective and unsafe condition, and a menace to Plaintiff ANDREW and others lawfully on the subject premises.

    

   By reason of the aforesaid negligence, carelessness, and recklessness of the Defendants, and each of them, as aforesaid, and as a direct and proximate result thereof, a dangerous common stairway that was not properly installed and/or maintained in the subject premises causing Plaintiff ANDREW to sustain the injuries as herein alleged.

    

   (First Amended Complaint, ¶¶ 13-15.)

    

               For pleading purposes, the Court finds Plaintiffs’ allegations sufficiently allege that Smith Properties owed a duty to Andrew or breached that duty.  The Court therefore overrules the demurrer to the first cause of action.

    

3. PREMISES LIABILITY

    

   Smith Properties next argues that the second cause of action fails to allege that Smith Properties owed a duty to Plaintiffs and breached that duty.  In opposition, Plaintiffs contend that paragraphs 11, 12, 19, of the first amended complaint alleges Smith Properties owed a duty to Andrew because it owned, leased, sub-leased, managed, owned, rented, operated, marketed, inspected, maintained, and/or controlled the premises.  Plaintiffs further contend that paragraphs 21 and 22 allege Smith Properties breached that duty by failing to maintain the property and remedy the dangerous condition or adequately warn or inform.

    

   The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

    

               As stated above, paragraph 11 alleges, “Plaintiffs are informed and believe, and thereon allege, that at all relevant times herein, the Defendants were the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers, and/or controllers, of a residential property located at 509 N Helberta Ave., City of Redondo Beach, County of Los Angeles, State of California. (the “subject premises”).”  (First Amended Complaint, ¶ 11.) 

    

               Paragraphs 21 and 22 allege as follows:

    

   Plaintiff ANDREW is informed and believes, and thereon alleges, that at all relevant times herein, the Defendants carelessly, and negligently owned, rented, managed, leased, supervised, inspected, operated, maintained, and/or controlled the subject premises, such that it was in a dangerous, defective, and unsafe condition in conscious disregard for the risk of harm to the lessors thereon. By reason of said carelessness, negligence, and conscious disregard of the Defendants, and each of them, the subject premises were unsafe and dangerous to the lessors, specifically to Plaintiff ANDREW

    

   The Defendants, and each of them, failed to warn Plaintiff ANDREW of the said dangerous, defective, and unsafe condition, although the Defendants, and each of them, knew of the same condition.

    

   (First Amended Complaint, ¶¶ 21-22.)

    

   For pleading purposes, the Court finds Plaintiffs’ allegations to be sufficient to state a cause of action for premises liability against Smith Properties.  The Court therefore overrules the demurrer to the second cause of action.

    

4. LOSS OF CONSORTIUM

    

   Smith Properties argues that the third cause of action also fails to allege that Smith Properties breached any duty to Plaintiffs.  In opposition, Plaintiffs contend that paragraphs 23 through 29 allege sufficient facts to establish the requisite elements for loss of consortium.

    

   “[T]he right to recover for loss of consortium is founded on the relationship of marriage, and absent such a relationship the right does not exist.” (Elden v. Sheldon (1988) 46 Cal.3d 267, 278.) “There are four elements to a cause of action for loss of consortium: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury, (2) a tortious injury to the plaintiff’s spouse, (3) loss of consortium suffered by the plaintiff, and (4) the loss was proximately caused by the defendant’s act.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [cleaned up].)

    

               Paragraphs 25 through 29 allege as follows:

    

   By reason of the conduct of the Defendants and each of them, Plaintiff ANDREW was severely injured as more fully set forth herein.

    

   By reason of the injuries suffered and sustained by Plaintiff ANDREW, as more fully set forth herein, Plaintiff JULIE has been deprived of the work, services, duties, companionship, care, comfort, society, and consortium of her spouse.

    

   Plaintiff JULIE is informed and believes, and on such information and belief alleges, that her husband, Plaintiff ANDREW’s injuries and condition are permanent, and that Plaintiff JULIE will forever be denied and deprived of the work, services, duties, companionship, care, comfort, society, and consortium of her spouse.

    

   By reason of the injuries suffered and sustained by Plaintiff ANDREW, Plaintiff JULIE has been deprived of the services of her husband, Plaintiff ANDREW, in that Plaintiff ANDREW is no longer able to perform the services he had rendered as a husband and father to their children as he had done prior to the injuries herein alleged.

    

   Plaintiff JULIE is informed and believes, and on such information and belief alleges, that her husband, Plaintiff ANDREW’s injuries and condition are permanent, and that Plaintiff JULIE will forever be denied and deprived of her husband’s services, all to Plaintiff JULIE’s damage according to proof.

    

   (First Amended Complaint, ¶¶ 25-29.)

    

               Based on the Court’s findings that the first and second causes of action state facts sufficient to constitute causes of action, the Court concludes that Plaintiffs’ third cause of action premised upon Smith Properties’ alleged tortious conduct in the first and second causes of action similarly states facts sufficient to constitute a cause of action.  The Court therefore overrules the demurrer to the third cause of action.

    

   CONCLUSION AND ORDER

    

   Therefore, the Court overrules Smith Properties’ demurrer to the first through third causes of action in the first amended complaint, and orders Smith Properties to answer the first amended complaint within 20 days of the hearing on the demurrer. 

    

   The Clerk of the Court shall provide notice of the Court’s ruling.