Judge Ralph C. Hofer, Case Number: 23GDCV00317, Date: 2023-10-27 Tentative Ruling

Judge: Ralph C. Hofer, Case: 23GDCV00317, Date: 2023-10-27 Tentative Ruling

Case Number: 23GDCV00317 Hearing Date: October 27, 2023 Dept: D

TENTATIVE RULING

Calendar: 7

Date: 10/27/2023

Case No: 23 GDCV00317 Trial Date: June 9, 2025

Case Name: Boghossian v. The Americana at Brand, LLC, et al.

DEMURRER

Moving Party: Defendant The Americana at Brand, LLC

Responding Party: Plaintiff Edna Martikian Boghossian

RELIEF REQUESTED:

Sustain demurrer to second cause of action of Complaint

CAUSES OF ACTION: from (Form) Complaint

1) Premises Liability

2) General Negligence

SUMMARY OF FACTS:

Plaintiff Edna Martikian Boghassian alleges that in February of 2021 plaintiff was injured at premises in Glendale which were negligently owned, operated, and maintained by defendants the Americana at Brand, LLC and Americana Residential, LLC in a dangerous condition. Plaintiff alleges that defendants failed to implement safety measures to protect individuals on the premises, and failed to warn and cordon off access to a disabled escalator, causing plaintiff to fall and suffer injury.

The complaint alleges that plaintiff was caused to fall due to defendants negligently managing, entrusting, hiring, and directing the control of the property, and that defendants allowed the escalator in the lobby to remain in a non-working condition when defendant knew or should have known that the non-working condition created an unreasonable risk of harm to customers. It is also alleged that defendants are common carriers and had a duty to carry passengers safely, using the highest care, which standard of care defendants breached.

ANALYSIS:

Procedural

Untimely

Under CCP §430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”

CRC Rule 3.110(d) provides:

“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”

Here, the complaint was served by personal service on July 10, 2023. Thirty days from this date would have been August 9, 2023.

The demurrer was filed and served on September 25, 2023, six weeks late, beyond any date upon which the parties were permitted to stipulate without leave of court for an extension of time to respond.

Defendant has submitted a declaration indicating that the parties agreed to an initial fourteen-day extension to respond to the complaint, to August 23, 2023. [Ziven Decl., para. 4, Ex. 1]. Defendant also indicates that the parties then agreed to an additional 30 day extension from August 23, 2023 to September 22, 2023. [Ziven Decl., para. 6, Ex. 4]. The demurrer was not served and filed until September 25, 2023, so arguably failed to meet even the agreed upon deadline. However, September 22, 2023 was a court holiday, and September 23 and 24 were Saturday and Sunday, so the demurrer was filed on the next court day after the extended period.

In any case, this is 32 days beyond what the parties were permitted to stipulate to under the Rules without leave of court, and there was no leave of court obtained.

The court could overrule the demurrer on this ground alone. The court has nevertheless reluctantly considered the untimely demurrer, but the parties are cautioned that in the future the court may refuse to consider papers not filed in conformity with the statutes, rules and procedures governing this litigation.

Substantive

Second Cause of Action—General Negligence

Defendant the Americana at Brand argues that plaintiff’s general negligence cause of action is subject to demurrer because it is wholly duplicative of plaintiff’s premises liability claim stated in the first cause of action. Plaintiff argues that by asserting these duplicative causes of action, plaintiff has violated the primary rights theory, as the pleading states two causes of action, each of which alleges an invasion of the same primary right, in effect, plaintiff’s injury to her person occurring while on defendant’s property.

The causes of action do not on their face appear strictly duplicative. The first cause of action for premises liability alleges that defendants improperly maintained the premises and failed to warn and cordon off access to a disabled escalator. [Complaint, para. Prem. L-1 and Prem L-2].

The second cause of action for general negligence, in addition to complaining of the failure to warn and cordon off access, also includes general allegations not included in the first cause of action that defendants negligently “managed, entrusted, hired, directed” their property, suggesting responsibility for the possible negligence of others. [Complaint, para. GN-1]. The cause of action also expands the allegations to more specifically allege the responsibility of defendants on a theory that they failed to meet their elevated standard of care to plaintiff as common carriers. [Complaint, Attach. GN-1].

The opposition explains that plaintiff alleged the cause of action to include, beyond claims limited to the possession and of the premises, liability for negligently hiring or entrusting people to perform with respect to the escalators, and that plaintiff did not allege these theories because the pre-printed form complaint does not include in the premises liability cause of action the language and grounds for broader liability.

Plaintiff also explains that the complaint is directed to two defendants, and that plaintiff is not yet aware of the relationship of these parties so that one could be liable only for premises liability and the other for general negligence due to lack of property rights.

The causes of action accordingly not duplicative.

Even if the cause of action were strictly duplicative, under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180; Adams v. Paul (1995) 11 Cal.4th 583, 593 (“a party may plead in the alternative and may make inconsistent allegations.”).

Moreover, as argued in the opposition, the duplicative standard referred to by defendant is not currently listed as a ground to sustain a demurrer under CCP § 430.10.

CCP § 430.10 states in pertinent part:

“The party against whom a complaint ... has been filed may object, by demurrer...to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes a ambiguous or unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

There is no provision for the case where a complaint includes duplicative causes of action or splits a primary right.

The opposition relies on Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890, under which it was observed that the duplicative standard referred to by defendant is not listed as a ground to sustain a demurrer under CCP § 430.10. Blickman, at 890. The court of appeal in Blickman noted that although the motion to strike statute previously authorized a court to strike “irrelevant and redundant” matter from a pleading, the statute no longer includes that language, and concluded, “This is not a ground on which a demurrer may be sustained.” Blickman, at 890, italics in original. As observed by plaintiff, and above, the statute also does not include as a ground for demurrer that a cause of action splits a primary right.

The demurrer accordingly is overruled.

RULING:

Defendant the Americana at Brand, LLC’s Demurrer to Plaintiff’s Complaint:

The Court notes that the demurrer is untimely, filed and served thirty-two days after the last date upon which the parties were authorized by statute to stipulate to an extension of time to plead without advance leave of Court. Both parties are cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules, and procedures governing this litigation.

Demurrer is OVERRULED.

Ten days to answer.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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