Judge: Michael E. Whitaker, Case: 24SMCV02161, Date: 2025-01-08 Tentative Ruling

Case Number: 24SMCV02161    Hearing Date: January 8, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from an alleged slip and fall on a city sidewalk in front of a restaurant.  Plaintiff Melanya Manukyan’s (“Plaintiff”) operative First Amended Complaint alleges three causes of action for (1) negligence; (2) governmental tort liability; and (3) premises liability against Defendants City of Los Angeles (“City”), Nick Mathers, Venice Windward LLC, and Luis Salas (“Restaurant Defendants”) (City and Restaurant Defendants together, “Defendants”).  The First and Third Causes of Action are alleged against the Restaurant Defendants only, and the Second Cause of Action is alleged against the City only. 

The Restaurant Defendants demur to the first and third causes of action on the grounds that they fail to state facts sufficient to constitute causes of action and uncertainty pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively. 

            The demurrer is unopposed.

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 testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See 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.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  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.) 

Although the Restaurant Defendants assert the demurrer in part on the grounds of uncertainty, the accompanying memorandum does not raise any arguments that the Complaint’s allegations are uncertain.  As such, the Restaurant Defendants do not demonstrate that any portions of the FAC are so bad that they cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. 

Accordingly, the Court thus declines to sustain the Restaurant Defendants’ demurrer to the first cause of action on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

The Restaurant Defendants argue (1) as the private business adjacent to the city sidewalk in question upon which Plaintiff allegedly slipped, the Restaurant Defendants owed no duty of care as a matter of law; and (2) Plaintiff has not alleged facts sufficient to state a cause of action against the individual defendants Mathers and Salas.

                                                         i.          Duty

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Here, Plaintiff alleges:

16. The incident that is the subject of this action occurred on or about September 23, 2023. Plaintiff sustained injuries as a result of a trip-and-fall on a certain premises and/or sidewalk in the City of Los Angeles, County of Los Angeles, State of California located at or near 24 Windward Avenue, Venice, CA 90291 (hereinafter “SUBJECT PREMISES”).

17. Plaintiff is informed and believes, and thereon alleges that Defendants CITY OF LOS ANGELES, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, and each of them, owned, possessed, leased, operated, managed, designed, manufactured, maintained, repaired, constructed, and/or controlled the aforementioned real property including but not limited to the SUBJECT PREMISES.

18. At all relevant times Plaintiff was lawfully present on or within the SUBJECT PREMISES.

19. Upon information and belief, one or more dangerous condition is believed, and thereon alleged, to have caused, contributed to, and/or been a substantial factor in causing the injuries of the Plaintiff.

[…]

24. At all times hereinafter mentioned, plaintiff MELANYA MANUKYAN, on or about September 23, 2023, was cautiously walking on the sidewalk located on 24 Windward Avenue in the County of Los Angeles, City of Los Angeles. Plaintiff MANUKYAN was heading towards the restaurant, when she tripped and fell and injured herself due to an uneven and dangerous condition existing on, in and as part of sidewalk, right in front of restaurant located at 24 Windward Avenue, Venice, CA 90291.

25. On the day of the subject incident, Defendant VENICE WINDWARD had both inside and outside seating on the subject sidewalk, as such serving customers seated inside of the restaurant, as well as customers seated outside of the restaurant on the subject sidewalk right in front of the restaurant.

26. On the date of the subject incident, for a period of time prior thereto, and at all relevant times, Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, and each of them, inclusive and each of them, were owners, occupiers, builders, operators, designers, repairers, possessors, lessors, operators, managers, custodians, supervisors, inspectors, servicers, controllers, engineers, contractors, renters, repairers and/or possessors of the abovementioned SUBJECT PREMISES.

27. On the date of the subject incident and at all relevant times, Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, and each of them, owed a duty to Plaintiff to exercise reasonable and ordinary care in the ownership, leasing, possession, use, inspection, control, maintenance, design, operation, and/or management of the SUBJECT PREMISES, so as to avoid subjecting Plaintiff and others to an unreasonable risk of harm.

28. At all relevant times herein, and for a period of time prior thereto Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, and each of them, so negligently, carelessly, recklessly, unskillfully, unlawfully, tortuously, and wrongfully owned, operated, built, engineered, contracted, leased, rented, occupied, maintained, controlled, inspected, managed, repaired, supervised, had possession and/or custody of, maintained equipment on or in, and/or had control over the abovementioned SUBJECT PREMISES, as to cause, permit, allow to be in a dangerous, hazardous, unlawful, unsafe condition. As a result of these acts and/or omissions, on or about September 23, 2023, Plaintiff MANUKYAN who was cautiously walking on the sidewalk located on 24 Windward Avenue in the County of Los Angeles, City of Los Angeles. Plaintiff MANUKYAN was heading towards the restaurant, when she tripped and fell and injured herself due to an uneven and dangerous condition existing on, in and as part of sidewalk, right in front of restaurant located at 24 Windward Avenue, Venice, CA 90291.

29. Despite having negligently created the dangerous condition and/or negligently and knowingly having allowed the dangerous condition to remain for a sufficiently lengthy period of time that a reasonable person would have had ample opportunity to take corrective action, Defendants and each of them, at least in part, created the dangerous condition, and failed to take action to correct the dangerous condition, and thus breached their duty(s) to Plaintiff, by their acts and omissions, including, but not limited to, the following: creating and/or failing to take corrective measures to cure the dangerous condition, which presented a trip hazard; failing to inspect the property for such dangerous condition, especially when a simple visual inspection of the SUBJECT PREMISES would reveal these dangerous conditions; failing to take corrective measures to cure the dangerous condition or otherwise to reduce the danger to prevent pedestrians, including Plaintiff, from tripping and/or falling; failing to adequately repair and/or modify the SUBJECT PREMISES so as to eradicate the dangerous condition, especially considering the removal of the dangerous condition would be minimal when compared to the substantial risk of the incident; failing to take proper action to prevent pedestrians, including Plaintiff, from sustaining the kind of injuries Plaintiff sustained.

30. As a direct and proximate result of the aforesaid negligence, acts and omissions of Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, and each of them, Plaintiff was injured and hurt in her health, strength and activity, sustaining injuries to her physical person, all of which injuries have caused and continue to cause Plaintiff great physical, mental, and emotional pain and suffering and economic loss as well. Plaintiff is informed and believes, and thereupon alleges, that her injuries have and will likely continue to result in permanent and degenerative disability, all to Plaintiff’s general damage, in an amount which will be stated at trial according to proof, but which amount exceeds the jurisdictional limits of this Court.

31. As a further proximate result of the said conduct of Defendants , NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, and each of them, Plaintiff was compelled to and did employ the services of medical, hospital, surgical and nursing professionals, and the like, to care for and treat her injuries and condition, and she did and will continue to incur medical, hospital, surgical, nursing, professional and other related incidental expenses. Plaintiff is informed and believes, and thereupon alleges, that by reason of her physical and emotional injuries, Plaintiff will necessarily incur additional like expenses.

[…]

64. On the date of the subject incident and at all relevant times, Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, owned, operated, built, engineered, contracted, leased, rented, occupied, inspected, managed, maintained, and/or controlled the premises located at or near 24 Windward Avenue, Venice, CA 90291 (the "SUBJECT PREMISES").

65. On the date of the subject incident and at all relevant times, Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, owed a duty to Plaintiff to exercise reasonable and ordinary care in the ownership, leasing, possession, use, inspection, control, maintenance, design, construction, and/or operation of the SUBJECT PREMISES, including the sidewalk directly adjacent to and used in connection with the restaurant, so as to avoid subjecting Plaintiff and others to an unreasonable risk of harm.

66. On or about September 23, 2023, Plaintiff sustained injuries as a result of a trip-and-fall on the uneven and/or dangerous sidewalk directly in front of the restaurant, located at or near 24 Windward Avenue, Venice, CA 90291.

67. At all relevant times, Plaintiff was lawfully upon the SUBJECT PREMISES. Plaintiff MANUKAYAN was heading towards the restaurant to have dinner.

68. At the time of the incident while exercising due care, Plaintiff used the SUBJECT PREMISES in a normal and reasonable way.

69. At all relevant times, Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, created or exercised control over the subject sidewalk by installing and maintaining an outdoor seating area with a raised deck and a wooden ramp, that was not part of the original concrete sidewalk. These modifications indicate Defendants exercised dominion and control over the sidewalk and had a duty to ensure the area was safe for public use. It is believed that these defendants undertook maintenance of the sidewalk where this incident took place. As it can be seen in this Google Street View image of the location, Venice Windward LLC, not only enclosed the public sidewalk, but they installed a: wooden ramp, a raised deck, added a patio cover with lighting fixtures, fences and barricades, placed plants/bushes on and around the sidewalk, outdoor heaters, tables, and chairs.

70. A landowner may be liable for injuries if they exercise control over a public sidewalk by modifying or creating structures that affect its safety. In settings where the abutting owners exercised control over the property such as by planting trees or habitually trimming or caring for them, these abutting owners have the duty to maintain the trees in a safe condition to make sure the roots do not cause a tripping hazard. Defendants' construction of a wooden ramp and an outdoor seating area on the sidewalk constitutes control, triggering their liability for any hazardous conditions created by these modifications.

71. Defendants' construction of a raised wooden ramp and creation of an outdoor seating area on the sidewalk directly contributed to Plaintiff's fall by creating an unsafe condition on the sidewalk. By exercising control over the sidewalk and modifying its structure, Defendants are liable for the injuries sustained by Plaintiff.

72. At all relevant times, Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, negligently owned, operated, constructed, leased, rented, occupied, maintained, and/or controlled the subject sidewalk and premises, and knew or should have known of the dangerous condition they created.

73. As a direct and proximate result of the dangerous condition created and maintained by Defendants, NICK MATHERS, VENICE WINDWARD LLC, LUIS SALAS, and DOES 1 through 250, inclusive, on the SUBJECT PREMISES, including the modifications made to the sidewalk (i.e., the wooden ramp and outdoor seating area), Plaintiff sustained injuries as described herein. These injuries were caused by the unsafe and dangerous condition of the premises, for which Defendants are liable under the doctrine of premises liability.

(FAC ¶¶ 16-19, 24-31, 64-69.)

            Thus, the FAC alleges that both the City and the Restaurant Defendants “owned, possessed, leased, operated, managed, designed, manufactured, maintained, repaired, constructed, and/or controlled” the subject premises.  (FAC ¶ 17.)  As to the Restaurant Defendants, the FAC further alleges that the restaurant maintained and operated a wooden deck, ramp, and outdoor restaurant seating on the city sidewalk in question.  (FAC ¶¶ 69-71.) 

As such, the FAC adequately alleges that the restaurant defendants owned, possessed, operated, and/or controlled the sidewalk in question to state a cause of action.  Whether the Restaurant Defendants actually owned or otherwise exerted possession, dominion, and/or control over the sidewalk in question is a factual question to be resolved at later stages of the litigation. 

Moreover, to the extent the FAC contradictorily alleges that both the City and Restaurant Defendants own the sidewalk in question, at the pleadings stage, a plaintiff may “plead in the alternative and make inconsistent allegations.”  (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)

                                                       ii.          Individual Defendants

As to the individual defendants, Plaintiff alleges alter ego liability as follows:

10. At all times hereinafter mentioned, plaintiff will show, according to proof, that various defendants were, and remain, the alter egos, successors, and/or successors in interest, of the remaining defendants.

11. As to “alter ego liability” defendants, it is alleged, upon information and belief, that as to those defendants, that at all times there existed such a unity of interest and ownership among those defendants such that any separateness ceased to exist that one was a mere shell or instrumentality through which the other carried out their business and that each defendant exercised such complete control over the other and so dominated it to achieve individual goals and so ignored business formalities that any separateness was merely a fiction, and did not in fact exist, and should be deemed not to exist, and as such, if acts are alleged as against one defendant in this complaint, it is alleged that that defendant acted for itself as well as on behalf of its alter egos. Among other things, those defendants did one or more of the following acts supporting its alter ego liability: commingled corporate funds; failed to observe corporate formalities including maintaining minutes and failure to contribute sufficient capital; commingled funds or other assets; used corporate funds for something other than corporate uses; failed to maintain adequate corporate records; deliberately confused the records of the separate entities; had the same directors and officers of the two or more corporations; used the same office or business location; utilized the same employees and/or attorney; failed to adequately capitalize the corporation; used the corporation as a mere shell, instrumentality or conduit for a single venture; failed to maintain an arm’s length relationship among related entities; and/or used a corporate entity to procure labor, services or merchandise for another entity. Moreover, injustice would result but for the finding of alter ego liability as to these defendants, and as such this Court should pierce the corporate veil. Further, since alter ego applies here, a corporation’s shareholders are treated as “partners” and are held jointly and severally liable for its debts and plaintiff notes that ownership of even one share is sufficient to impose alter ego liability, and it is thus alleged, upon information and belief, that various defendants as alter egos, are also active shareholders in the remaining defendants, influenced and governed the remaining corporate defendants and as such can, and should, be held liable as an alter ego of each and every remaining defendant.

(FAC ¶¶ 10-11.)

CONCLUSION AND ORDER

For the reasons stated, the Court overrules the Restaurant Defendants’ Demurrer to the First and Third Causes of Action in its entirety. 

Further, the Court orders the Restaurant Defendants to file and serve (an) Answer(s) to the FAC on or before January 24, 2025. 

The Restaurant Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  January 8, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court