Judge: Michael E. Whitaker, Case: 22STCV35768, Date: 2023-01-12 Tentative Ruling

Case Number: 22STCV35768    Hearing Date: January 12, 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 Esther K. Lee sued Defendants 2870 O Consortium, LLC, Arc City, Bryan E. Bohannan, and Central Reclamation (collectively, Defendants) based on injuries Plaintiff alleges she sustained as a result of long term construction being conducted in front of her residence.   Defendants Arc City and Bryan E. Bohannan (Demurring Defendants) demur to the second, third, and fourth causes of action in Plaintiff’s complaint.  Plaintiff opposes the demurrer.  Demurring Defendants reply. 

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.) 

    

   Plaintiff’s second, third, and fourth causes of action assert negligence, negligence per se, battery, and intentional infliction of emotional distress (IIED) against Defendants.  “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].)

    

1. Negligence Per Se

    

               Demurring Defendants demur to Plaintiff’s second cause of action for negligence, which incorporates Negligence Per Se, for failure to sufficiently allege facts to constitute a cause of action. 

    

               “Negligence per se is an evidentiary doctrine, rather than an independent cause of action.  It can be applied generally to establish a breach of due care under any negligence-related cause of action. Therefore, the doctrine of negligence per se is within the scope of pleadings that allege general negligence, as proof of a breach of duty is not limited to common law standards of care.”  (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210–1211, citations omitted; see also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285–1286 [“negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute”].)  

    

               Here, Plaintiff has asserted a cause of action for Negligence Per Se.  (Complaint, pp. 11-12.)  But as both Jones and Quiroz hold, a claim of negligence per se is not cognizable. 

    

2. Statute of Limitations

    

   Demurring Defendants next argue that Plaintiff’s negligence and battery claims, on their face, are barred by the statute of limitations. 

    

   A demurrer lies where the dates alleged in the complaint show the cause of action is barred by the statute of limitations.  (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)  The running of the statute must appear “clearly and affirmatively” from the face of the complaint. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4h 32, 42.)  The statute of limitations for both an action for negligence and battery is two years.  (Code Civ. Proc., § 335.1.)  The cause of action for negligence accrues and the statute of limitations begins to run at the time of the injurious event.  (Campanano v. California Medical Center (1995) 38 Cal.App.4th 1322, 1329-1330.)  The cause of action for battery accrues when the touching occurs.  (Sonbergh v. MacQuarrie (1952) 112 Cal.App.2d 771, 774.)

    

   Demurring Defendants assert that Plaintiff’s allegations indicate the statutes of limitations for the second and third causes of action have run because paragraphs 37, 38, 59, 60, 73 and 74 of the complaint allege the following:

    

• On 10/7/2020 (3:30 PM), cement and debris were pushed into her house from the Concrete Mixer (i.e., Truck Agitator), which was always parked in blocking of her driveway. 
• When Esther pushed them (debris and concrete) out to the sewage, she was suddenly unconscious by her head injury, being hit by the connector part of agitator. 

(See Complaint, ¶¶ 37, 38, 59, 60, 73, and 74.) 

The Court notes that Plaintiff’s complaint was filed on November 14, 2022, or approximately two years and one month after October of 2020. 

In opposition, in regard to the negligence cause of action, Plaintiff argues that she originally did file a Complaint against Demurring Defendants for negligence within the statute of limitations period, on October 25, 2021.  However, Plaintiff attests that because one of Demurring Defendants’ employees misled her into believing they would pay for her injuries, she dismissed the action.  However, the Court cannot assess this argument as it involves issues outside of the Complaint.  Further, Plaintiff did not request judicial notice of evidence which could substantiate her claims.

Plaintiff next argues that both the negligence and battery causes of action were filed within their statutes of limitation based on the application of Emergency Rule 9.  Rule 9 provides, “[n]otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020. Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.” (Cal. Rules of Court, Emergency rule 9, subds. (a)-(b).)  However as Demurring Defendants note in their reply, Emergency Rule 9 is inapplicable here because the incident at issue took place on October 7, 2020, after the applicable time frame of Emergency Rule 9, April 6, 2020 through October 1, 2020.

Accordingly, the Court finds Plaintiff’s causes of action for negligence and battery are barred on their face by the applicable statutes of limitation.

1. Intentional Infliction of Emotional Distress (IIED)

    

   Demurring Defendants next demur to the fourth cause of action for IIED for failure to state facts sufficient to constitute a cause of action and as uncertain.

    

   To prevail on the IIED cause of action, Plaintiff must prove : “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is outrageous when “it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid. [cleaned up].) Further, the defendant’s conduct must be “intended to inflict injury or engages in with the realization that injury will result.” (Id. at p.1051 [cleaned up].)

    

   The Complaint alleges in pertinent part the following:

    

• Here, as mentioned, on or about 10/2018, one of defendants, Real Estate Developer, “2870 O Consortium, LLC” (Hereinafter Developer) collected approximately $18,000,000.00 from the investors and/or Creditors and purchased existing old properties located Olympic Blvd. and Kenmore Ave. in the middle of Koreatown for purpose of condominium construction (i.e., 1010 S. Kenmore Ave., Los Angeles, CA 90006).
• The plaintiff Esther K. Lee (Hereinafter ESTHER) had been residing just other side of construction site of 1017 S. Kenmore Ave., Los Angeles, CA 90006) since 03/01/2013
• Developer’s construction started on or about 12/2019, of which lots of dust and unexpressive and undisputable noise was occurred starting from 6 AM in the morning to approximately 7 PM, which was continued more than three (3) months.
• ESTHER as a reasonable person could have not kept her usual life, absolutely including her privacy and quiet use and enjoyment.
• It was realistically difficulted for Esther to use her driveway and thus she could not escaped from the hell (her house), because the load (Kenmore Ave. to the Olympic Blvd.) was blocked almost all day long.
• In addition, lots of trucks and trailers were continuously rotating approximately from 7:00 AM to 6 PM. Indeed, her life was in the hell.
• It was same life to Esther’s family (two adult sons and her mother).
• Esther’s two sons could have not worked in their working (sic) in the home during COVID-19 pandemic, where they have to pay hotel fee, being separated from family meeting and enjoyment.
• Although this unlawful, substantial and unreasonable interference was to all of neighbors of Esther, even if she had particularly serious head injury thereof.
• Nonetheless, when Esther launched court action against Agitator (truck) company and/or related company, (i.e., ART CITY) on “10/25/2021,” one of employees there promised to pay injury, which was hoax.
• The construction is not completed and still working and Esther’s life is still in the hell with trauma and brain pain.
• Esther’s Sequelae of head injury had been continued since 10/07/2021 and she could have not slept without painkiller, nor had she enjoyed her life in trauma.
• Recently, she had serious traffic collision caused by head injury, where she suddenly and unexpectedly could have not recognize driving situation and confused by neurological malfunctioning.
• Defendants’ conduct was outrageous in nature and extreme in character modern construction company’s community.

(Complaint, ¶¶ 78-92.)  The Court finds Plaintiff fails to allege outrageous conduct on the part of Demurring Defendants with the intention of causing, or reckless disregard of causing, emotional distress to state a cause of action for IIED.  

CONCLUSION AND ORDER

Therefore, the Court sustains Demurring Defendants’ demurrer to Plaintiff’s second and third causes of action without leave to amend, [1] and sustains Demurring Defendants’ demurrer to the fourth cause of action with leave to amend.  The Court orders Plaintiff to file and serve an amended complaint in accordance with the Court’s ruling within 20 days of notice of the Court’s ruling.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.