Judge Michelle C. Kim, Case Number: 23STCV22012, Date: 2024-02-13 Tentative Ruling

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ROSANNA COSIO, ET AL.,

Plaintiff(s),

vs.

419 N. MOUNTAIN VIEW TERRACE, LLC, ET AL.,

Defendant(s).

)

CASE NO: 23STCV22012

[TENTATIVE] ORDER SUSTAINING DEMURRER TO COMPLAINT WITH LEAVE TO AMEND

Dept. 31

1:30 p.m.

February 13, 2024

I. Background

Plaintiffs Rosanna Cosio and Rodel Cosio (“Plaintiffs”) filed this action against defendants 419 N. Mountain View Terrace, LLC and Manager Lito Desalesain (“Lito”) (collectively, “Defendants”) for injuries arising from a balcony collapse. The complaint sets forth two causes of action for (1) general negligence and (2) premises liability.

Defendants demur to the complaint, arguing it fails to state sufficient facts to constitute causes of action for negligence and premises against Lito as an individual. The motion is unopposed.

II. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The Court finds Defendants not fulfilled this requirement prior to filing the demurrer. (Volcy Decl. ¶ 3.)

Analysis

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) “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.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)

Here, Defendants argue that Lito does not own the subject property and cites case law pertaining to imposition of liability on a shareholder under an alter ego theory. The complaint alleges that Plaintiffs were on the balcony of the apartment owned and managed by Defendants, and that Defendants failed to keep the premises safe. Defendant Lito was sued as “Manager” Lito Desalesain. Although Defendants’ arguments concerning alter ego theory is unclear as to its relevance, the complaint’s factual allegations are uncertain as to Lito’s individual liability based on the manner in which she was sued. Since Plantiffs did not oppose the motion, Plaintiffs are presumed to have conceded on this point.

Based on the foregoing, Defendant’s demurrer to Plaintiffs’ complaint is sustained with 20 days leave to amend.

Moving party is ordered to give notice.

PLEASE TAKE NOTICE:

Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿
Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿
If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿

Dated this 9th day of February 2024


	Hon. Michelle C. Kim Judge of the Superior Court