Judge: Michael E. Whitaker, Case: 21STCV42736, Date: 2022-09-08 Tentative Ruling

Case Number: 21STCV42736    Hearing Date: September 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. 

TENTATIVE RULING

MOTION

Plaintiffs Todd Bertrang (“Todd”) and Ophie Bertrang (collectively, “Plaintiffs”) sued defendants Lido Sailing Club, Inc. (“Lido”), Ivory Holdings, LLC (“Ivory”), and Scott Volero (“Volero”) (collectively, “Defendants”) based on injuries Plaintiffs allege they sustained from Todd’s exposure to hazardous chemicals.  Lido demurs to Plaintiffs’ entire complaint and the first through fifth causes of action, individually, in Plaintiffs’ first amended complaint.  Plaintiffs oppose the demurrer.

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

Here, Plaintiffs request the Court to take judicial notice of a document that Plaintiffs neglected to include in their filings. The Court therefore denies the request.

ANALYSIS

“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, Lido first argues Plaintiffs’ entire complaint is uncertain.  Specifically, Lido contends that the complaint groups Defendants as the lessors, sublessees, and either owners or controllers of the subject premises.  Lido therefore asserts that the first amended complaint is uncertain, ambiguous, and unintelligible as to how or when Lido controls the premises and when Lido engaged in the alleged tortious conduct.

            The First Amended Complaint alleges, in relevant part:  

“On or about May 21, 2014, BERTRANG, an individual dba HUNTINGTON HARLEYS, entered into a sublease agreement with defendants IHL, Volero and LSC, regarding the Premises.

On or about August 1, 2016, BERTRANG signed a further lease regarding the premises with IHL and Volero only. Said lease extended until August 2019. On or about August 2019 BERTRANG signed a further lease, regarding the Premises with IHL and Volero for an additional period of six months.

Defendants either own and/or control the Premises. As such, Defendants are under a duty to exercise reasonable care to make sure that the Premises is maintained in a safe and usable condition free of any risks and dangers, and to inspect for and warn against such risks and dangers.”

(First Amended Complaint, ¶¶ 9, 10, 19.) 

In opposition, Plaintiffs argue that Lido’s liability stems from duties of both a lessee and landlord, and its duty to discover and report chemical deposits to Plaintiffs prior before entering into the sublease agreement.  In the alternative, Plaintiffs request leave to amend the complaint to clarify when Lido’s duties arose under the respective theories for each cause of action.

While Plaintiffs are permitted to plead in the alternative, the Court finds Plaintiffs’ allegations in this instance to be fatally uncertain. It is unclear from the First Amended Complaint under which special relationship Lido’s duties arise and when.  As Plaintiffs point out, Lido’s duty as a lessee to conform its use of the premises is distinct from its duty as a landlord to exercise reasonable care in the inspection of the premises for dangerous conditions to provide and maintain safe conditions.  (See Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, 672-673 [lessee’s duty]; Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134 [landlord’s duty].)  Further, with respect to the third cause of action, Lido correctly indicates that the duties of an owner of nonresidential real property or lessee or renter of real property are also distinct under Health & Safety Code section 25359.7.  (See Hlth. & Saf. Code, § 25359.7, subds. (a), (b).) 

The Court finds that, from the current allegations in the First Amended Complaint, Lido cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it. Accordingly, the Court sustains the demurrer on the basis of uncertainty.

CONCLUSION AND ORDER

Therefore, the Court sustains Lido’s demurrer to the First Amended Complaint with leave to amend.  The Court orders Plaintiffs to file and serve an amended complaint in accordance with this ruling within 20 days of notice of the Court’s orders.  

Lido shall provide notice of the Court’s orders and file a proof of service of such.