Judge: Randy Rhodes, Case: 22CHCV00840, Date: 2023-01-18 Tentative Ruling
Case Number: 22CHCV00840 Hearing Date: January 18, 2023 Dept: F51
Dept. F-51
Date: 1/18/23
Case #22CHCV00840
DEMURRER
Demurrer without Motion to Strike Filed: 11/29/22
MOVING PARTIES: Defendant Town Ridge Homes Association (“Defendant”)
RESPONDING PARTY: Plaintiff Aric Cho, in pro per (“Plaintiff”)
NOTICE: OK
RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire complaint.
TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend.
I. BACKGROUND
Plaintiff alleges that he was injured as a result of a dangerous condition on property associated with Defendant, a homeowners association.
On 10/11/22, Plaintiff filed his complaint, alleging against Defendant the sole cause of action for dangerous condition on property.
On 11/29/22, Defendant filed the instant demurrer. On 12/27/22, Plaintiff filed his opposition. On 12/30/22, Defendant filed its reply.
II. ANALYSIS
Meet-and-Confer
Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)
Here, counsel for Defendant declares that on 11/14/22, his office sent a letter to Plaintiff by email detailing the issues raised in the instant demurrer. (Ex. B to Decl. of Adam G. Byrne.) The parties discussed further by email, but were unable to come to a resolution. (Ex. C to Byrne Decl.)
Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).
Demurrer
As a general matter, a¿party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including¿that¿“the pleading does not state facts sufficient to constitute a cause of action” or is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).)
In¿a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co.¿(2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc.¿v.¿Accountants, Inc. Servs.¿(2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)
Here, Defendant¿demurs to Plaintiff’s complaint pursuant Code of Civil Procedure section 430.10, subdivisions¿(e) and (f),¿arguing that the pleading fails¿to allege facts sufficient to¿state¿a cause of action and is uncertain. Defendant further demurs to the complaint on the bases that it does not comply with statutory pleading form requirements and is time-barred by the relevant statute of limitations.
A. Failure to State Facts to Constitute a Cause of Action
Plaintiff’s complaint begins with a reference to Civil Code section 1714, which establishes a cause of action for premises liability under a negligence theory. Under this statute, “everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code § 1714, subd. (a).)
To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 927, fn. 8.) Breach occurs when defendant's conduct falls below the standard of care established by law for the protection of others, which includes the violation of a statute. (Rest.2d Torts § 282; Evid. Code § 669, subd. (a)(1).)
Here, Defendant argues that Plaintiff’s complaint fails to state facts to support any of the elements for a negligence cause of action. (Dem. 5:24–26.) Plaintiff appears to allege that the physical design of the cul-de-sac, as well as the issuance of two street addresses for the same property, caused him injury. (Compl. p. 2.) However, as Defendant observes, the complaint fails to state facts (1) connecting Defendant to the property; (2) detailing any conduct by Defendant; or (3) describing the mechanism by which he was injured. Plaintiff’s opposition does not indicate that the complaint successfully states the necessary facts.
Based on the foregoing, the Court finds that Plaintiff has not successfully alleged facts to support a cause of action under Civil Code section 1714. As such, Defendant’s demurrer is sustained on this ground.
Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)
Here, Defendant argues that the complaint is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f) because it “fails to provide any semblance of a legal or factual basis to support Plaintiff’s claims.” (Dem. 4:6.) As Defendant observes, the complaint fails to state the dates, location, and method by which Plaintiff’s injuries were allegedly sustained, thereby making the pleading “so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.)
Accordingly, the demurrer is sustained on this ground.
C. Procedural Defects
“A complaint or cross-complaint shall contain both of the following: (1) A statement of the facts constituting the cause of action, in ordinary and concise language;” and “(2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.” (Code Civ. Proc. § 425.10, subd. (a).)
Here, Defendant argues that “there is a wealth of ambiguity as to the date, location, and mechanism of Plaintiff’s alleged harm, let alone Defendant’s connection to the same. This defect in the pleadings makes it impossible for Plaintiff’s claim to go forward as Plaintiff has failed to plead any legal or factual basis by which he deems himself entitled to relief.” (Dem. 6:9–13.)
Defendant further argues that Plaintiff’s action is time-barred by the relevant statute of limitations. “An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” must be commenced within two years of the injury. (Code Civ. Proc. § 335.1.)
Here, Plaintiff alleges that he sustained a pelvic fracture on 5/7/20. (Compl. p. 4.) As such, Defendant asserts that the deadline for Plaintiff to bring the instant action had lapsed by the time Plaintiff filed his complaint on 10/11/22. (Dem. 5:11–16.)
The Court notes that Defendants’ above arguments as to the legality of Plaintiff’s complaint are more appropriately brought under a motion to strike pursuant to Code of Civil Procedure section 436, subdivision (b). Moreover, in light of the Court’s decision to sustain the demurrer for the reasons set forth above, the Court declines to reach the merits of Defendant’s arguments herein.
III. LEAVE TO AMEND
Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
Here, the Court notes that this is the first demurrer brought in this action. Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiff 30 days leave to amend the complaint to cure the defects set forth above.
CONCLUSION
The demurrer is sustained with 30 days leave to amend.