Judge: Ralph C. Hofer, Case: 24NNCV02282, Date: 2025-05-30 Tentative Ruling
Case Number: 24NNCV02282 Hearing Date: May 30, 2025 Dept: D
TENTATIVE RULING
Calendar: 3
Date: 05/30/2025
Case No: 24 NNCV02282 Trial Date: None Set
Case Name: Higer v. Kennedy Wilson, et al.
MOTION TO STRIKE
Moving Party: Defendant KW Victory Plaza Loan, LLC
Responding Party: Plaintiff Anita Higer
RELIEF REQUESTED:
Strike from complaint “Count Three—Dangerous Condition of Public Property.”
CAUSES OF ACTION: from (Form) Complaint
1) General Negligence
2) Premises Liability
Count One—Negligence
Count Three—Dangerous Condition of Public Property
SUMMARY OF FACTS:
Plaintiff Anita Higer alleges that in June of 2022, plaintiff parked her vehicle in the Victory Plaza Shopping Center intending to patronize one or more of the stores at that location. Plaintiff at the time possessed a valid handicapped parking placard issued by the State of California and so parked in a marked handicapped parking space. Plaintiff alleges that unbeknownst to plaintiff the handicapped space, and the similar handicapped space adjacent to it, were constructed such that the asphalt pad was raised off the level ground, requiring handicapped customers to encounter a decline in the pavement. Plaintiff alleges that as a result of this condition and construction defect, when plaintiff exited her vehicle she lost her balance, falling hard on the pavement and sustaining serious injuries.
The complaint alleges that at the time defendant Kennedy Wilson owned and controlled the subject property and was either negligent in the construction and maintenance of the asphalt pad, or otherwise failed to repair or correct the defective condition. It is also alleged that defendants Kennedy Wilson and Gerrity Group, LLC owned public property on which a dangerous condition existed.
The file shows that on September 18, 2024, defendant Gerrity Group filed a cross-complaint against KW Victory Plaza Loan, LLC for total indemnity, implied partial indemnity, declaratory relief, and equitable apportionment.
On November 26, 2024, Gerrity Group filed a Request for Dismissal without prejudice of its cross-complaint, which dismissal was entered as requested the same date.
On December 9, 2024, plaintiff filed a Request for Dismissal without prejudice of the complaint against defendant Gerrity Group, which dismissal was entered as requested the same date.
On January 29, 2025, plaintiff filed a Request for Dismissal without prejudice of the complaint against defendant Kennedy Wilson, which dismissal was entered as requested the same date.
On March 4, 2025, plaintiff filed an Amendment to Complaint, substituting the true name of KW Victory Plaza Loan, LLC for the fictitious name of Doe 1.
Defendant KW Victory Plaza Loan, LLC now brings this motion to strike with respect to the complaint.
ANALYSIS:
Defendant KW Victory Plaza Loan, LLC (KW Loan) seeks to strike from the Form Complaint the third count of the second cause of action for premises liability, which is entitled “Dangerous Condition of Public Property,” and alleges, “The defendants who owned the public property on which a dangerous condition existed were…” Kennedy Wilson, Gerrity Group and “Does 1 to 20.” [Complaint, para. Prem.L-4].
Under CCP § 435, a party may serve and file a motion to strike a part of a pleading.
Relief is sought under CCP § 436, which provides, in pertinent part:
“The court may, upon a motion made pursuant to CCP § 435, or at any time in its discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.”
Defendant KW Loan argues that the complaint improperly alleges dangerous condition of public property against privately owned property. As set forth above, the complaint in the second cause of action for premises liability alleges that “The defendants who owned public property on which a dangerous condition existed” include Doe 1. [Complaint, para. Prem.-L 4]. The motion does not point to any allegation in the complaint which would suggest that the premises were privately owned and has not submitted a request for judicial notice in support of the argument.
CCP § 437 provides:
(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.
(b) Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.”
It is not clearly argued here that there are any other allegations in the pleading which would suggest that the premises are privately owned, and not public property, as alleged. There is no request for judicial notice to establish the facts apparently relied upon, in effect, that the property was not public property, or that moving defendant is not a public entity. The motion seemingly requests that the court simply take defendant’s word for it, which is not the function of a motion to strike.
For purposes of ruling on a motion to strike, the allegations of the pleading are assumed to be true. Clauson v. Superior Court (1998 2nd Dist.) 67 Cal.App.4th 1253:
“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519, 11 Cal.Rptr.2d 161; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91, 168 Cal.Rptr. 319; see California Judges Benchbook, Civil Proceedings Before Trial (1995) § 12.94, p. 611.)”
Clauson, at 1255.
The complaint alleges that the premises were “public property,” which must be taken as true. The motion to strike could accordingly be denied.
However, there is no opposition to this motion, which suggests that the motion may have some merit. Although not clearly argued, the Doe Amendment names KW Loan as “KW Victory Plaza Loan, LLC,” suggesting this defendant is a business entity, not a public entity. The court instead grants the motion with leave to amend to permit plaintiff to clarify the claim as brought against this defendant.
RULING:
UNOPPOSED Motion to Strike Portions of the Complaint is GRANTED WITH LEAVE TO AMEND on the ground the Amendment to Complaint naming the moving defendant suggests that the cause of action is not brought in connection with a public entity’s responsibility for public property. Paragraph Prem.L-4 is accordingly stricken from the complaint, only as it applies to defendant Doe 1.
Ten days leave to amend paragraph Prem.L-4 only (Count Three of Second Cause of Action for Premises Liability), if possible.
The parties are ordered to meet and confer in full compliance with CCP § 435.5 before any further motion to strike is filed.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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