Judge: Michael E. Whitaker, Case: 21STCV30927, Date: 2023-03-06 Tentative Ruling

Case Number: 21STCV30927    Hearing Date: March 6, 2023    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

Plaintiff Corina Hernandez (Plaintiff) sued Defendants Bird Rides, Inc. (Bird) and Bank of Hope, Inc. (BOH) based on injuries Plaintiff alleges she sustained when she tripped and fell over a Bird scooter lying in the middle of a sidewalk adjacent to property owned by BOH.  BOH demurs to the first cause of action for negligence and third cause of action for negligent infliction of emotional distress (NIED) in Plaintiff’s Complaint, which are the only causes of action pled against BOH.  Plaintiff opposes the demurrer.  BOH replies. 

ANALYSIS

1. Demurrer

“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.)

1. Negligence and NIED Causes of Action

BOH demurs to the first and third causes of action in Plaintiff’s complaint for failure to allege facts sufficient to constitute a cause of action.  Plaintiff’s first cause of action is a negligence claim.  The basic elements of an actionable negligence claim are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; (3) and harm to the plaintiff caused by the breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

Plaintiff’s third cause of action is a NIED claim.  Negligent infliction of emotional distress (“NIED”) “[i]s a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages. The distinction between the bystander and the direct victim cases is found in the source of the duty owed by the defendant to the plaintiff. Bystander claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a direct victim arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff.” (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [cleaned up].) “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

BOH argues Plaintiff’s first and third causes of action are both deficient because they fail to allege a duty owed by BOH to Plaintiff to maintain the sidewalk adjacent to BOH’s premises. 

Per Streets and Highways Code section 5610, the owner of a lot owes a duty to the county or municipality to maintain and repair the sidewalk that abuts the lot. (Sts. & Hy. Code, § 5610.) This statute does “not to create a standard of care toward pedestrians but only a liability of the owner to the municipality.” (Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1590, emphasis original.)  Per Los Angeles Municipal Code section 62.104, subdivision (b), a lot owner must “maintain any Sidewalk, Driveway Approach, Curb Return or Curb on the Lot in such condition that the Sidewalk, Driveway Approach, Curb Return or Curb will not endanger any Person or property passing thereon.”  (L.A. Municipal Code, § 66.40, subd. (b).)  However, the lot owner’s duty is to the City of Los Angeles and not to passersby.  Per Jones v. Deeter (1984) 152 Cal.App.3d 798, property owners owe the duty this statute imposes to the city and not to persons using the sidewalk.  (Jones v. Deeter (1984) 152 Cal.App.3d 798, 803 [“[T]he abutting property owner is not liable in tort to travelers injured on the sidewalk unless the owner somehow creates the injurious sidewalk condition”].) 

BOH does not have a duty to passersby, such as Plaintiff, injured on the sidewalk abutting their premises, per Streets and Highways Code section 5610.  Thus, based upon Plaintiff’s allegations that the subject incident occurred when she was “walking on W Olympic Blvd sidewalk at or near the BOH” (Complaint, ¶ 4), the Court finds Plaintiff’s Complaint fails on its face to allege a duty owed by BOH to Plaintiff to maintain the sidewalk adjacent to BOH’s premises.

2. Leave to Amend

Plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See The Inland Oversight Committee, supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet her burden. Plaintiff’s opposition to the demurrer mentions in one line at the end of the demurrer her request for leave to file an amended complaint.  Without more, Plaintiff’s request is insufficient for the Court to grant Plaintiff leave to amend the Complaint.

CONCLUSION AND ORDER

Therefore, the Court sustains BOH’s demurrer to the first and third causes of action in Plaintiff’s complaint without leave to amend. 

BOH is ordered to provide notice of the Court’s ruling and file a proof of service of such.