Judge Ralph C. Hofer, Case Number: 23GDCV00618, Date: 2023-10-27 Tentative Ruling

Judge: Ralph C. Hofer, Case: 23GDCV00618, Date: 2023-10-27 Tentative Ruling

Case Number: 23GDCV00618 Hearing Date: October 27, 2023 Dept: D

TENTATIVE RULING

Calendar: 11

Date: 10/27/2023

Case No: 23 GDCV00618 Trial Date: None Set

Case Name: Nazaryan v. Caruso Management Company, Ltd.

DEMURRER

Moving Party: Defendant Caruso Management Company, Ltd.

Responding Party: Plaintiff Leah Nazaryan, through her GAL

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 Leah Nazaryan, a minor, through her GAL, alleges that on March 31, 2021, while plaintiff was on the property of defendant Caruso Management Company, Ltd., an unhinged metal stand fell on plaintiff’s head, causing plaintiff bodily injuries and damages.

The complaint alleges that defendant, as the owner and operator of the premises, should have known of the dangerous condition, and should have used due care in making the premises reasonably safe, and if the invitor has created such conditions or has actual knowledge of them, must give reasonable warning of the danger to an invitee. The complaint alleges that defendants who own, lease, occupy or control property are negligent if defendants fail to use reasonable care to keep the property in safe condition, fail to discover any unsafe conditions, or fail to repair, replace or give adequate warning.

ANALYSIS:

Second Cause of Action—General Negligence

Defendant Caruso Management Company, Ltd 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 alleged injury 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, primarily through form complaint standard language, that defendant “negligently owned, maintained, managed and operated the described premises,” and that plaintiff was injured when a metal stand fell and slammed onto plaintiff’s head. [Complaint, Prem. L-1 and Prem L-2].

The second cause of action for general negligence includes allegations that defendants, presumably including the Doe defendants, who “owns/leases/occupies/controls property” owe various negligence duties including to use reasonable care, to discover unsafe conditions and warn of them, and to repair or replace conditions that could be reasonably expected to cause harm. These allegations suggest that the general negligence claim seeks to impose liability on moving defendant for the possible negligence of others. [Complaint, para. GN-1].

The opposition argues that defendant has acknowledged that the causes of action are not identical. Plaintiff also argues that the negligence cause of action would cover theories of liability against tortfeasors, such as outside contractors, vendors, residents, or visitors that negligently cause harm but do not own or control the property, and that moving defendant may be responsible for the wrongful acts of its agents. Plaintiff argues that it is unclear at this point who placed the unhinged metal stand, whether it was an employee of the Americana, or a contractor, security guard, or someone else, and whether the metal stand was properly placed, altered, tampered with, or broken, and who had control over it.

The causes of action are not duplicative.

Even if the negligence 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, 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.

In Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890, the court of appeal 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 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 Caruso Management Company, Ltd.’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Ten days to answer.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

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