Judge: Richard Y. Lee, Case: 30-2022-01258599, Date: 2022-12-07 Tentative Ruling
Defendant ERP Operating Limited Partnership (erroneously sued as “Equity Residential”) filed a Demurrer to the Complaint pursuant to Code of Civil Procedure section 430.10 on the grounds that (1) Plaintiff Alexandra Cardenas has not alleged facts to bring any claim in her individual capacity; (2) the Complaint should not be brought by a guardian ad litem because L.C. is over 18 years old; and (3) the Complaint fails to state facts sufficient to constitute the second cause of action for negligence.
The court need not reach the merits of the Demurrer because the Demurrer is untimely. A demurrer must be filed “within 30 days after service of the complaint.” (Code Civ. Proc., § 430.40, subd. (a).)
The “demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).) “The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension.” (Ibid.) “Any further extensions shall be obtained by court order upon a showing of good cause.” (Ibid.)
Here, Moving Party was served with the Summons and Complaint on Thursday, June 23, 2022. (ROA # 19.) 30 days after Thursday, June 23, 2022 is Saturday, July 23, 2022. Pursuant to Code of Civil Procedure section 2016.060, the 30 days is extended until Monday, July 25, 2022. On Monday, July 25, 2022, Moving Party timely filed the requisite meet and confer declaration to trigger the automatic 30-day extension. However, because the declaration was served by email, Moving Party had until Wednesday, July 27, 2022 to file the declaration pursuant to Code of Civil Procedure section 1010.6(a)(4).
Thirty days from Wednesday, July 27, 2022 is Friday, August 26, 2022. Again, because the Demurrer was served by email, the time to serve and file the responsive pleading is extended by two court days pursuant to Code of Civil Procedure section 1010.6(a)(4). Thus, the Demurer was due Tuesday, August 30, 2022.
The Demurrer, however, was not served until Wednesday, August 31, 2022. As such, the demurrer should be OVERRULED as untimely.
However, as the issue was not raised in opposition, the court will address the merits.
Defendant’s First Ground for Relief is MOOT
As an initial matter, the Court previously ordered that any reference to Plaintiff Alexandra Cardenas proceeding in her individual capacity shall be stricken from the Complaint. (ROA # 73.) Thus, the Demurrer is MOOT as to the first grounds for relief.
Defendant’s Second Ground for Relief is OVERRULED
Next, the Court previously declined to strike the claims asserted by “L.C.” as a minor suing through his Guardian Ad Litem and all references to Plaintiff as L.C. or a minor because they were properly alleged by Plaintiff on the date the litigation was filed. (ROA # 73.) The Court determined that L.C. properly appeared as a minor in the operative Complaint and L.C. was not legally permitted to initiate this lawsuit without a guardian based on his age at the time this action was filed. As alleged in the operative Complaint, L.C. was 30 days shy of his 18th birthday on the day the action was filed. For this reason, the Demurrer is OVERRULED on the second ground for relief. Whether L.C. qualifies for a guardian ad litem on the basis of his alleged special needs is not an issue before the court as the court is limited to the four corners of the Complaint when analyzing the Demurrer.
Defendant’s Third Ground for Relief is SUSTAINED WITH LEAVE TO AMEND
Now, only one issue remains in the Demurrer: whether the Complaint states facts sufficient to constitute a cause of action for negligence against Defendant, the property owner of the subject residence. In particular Defendant alleges that the Complaint does not allege that the criminal acts by third person were a foreseeable harm. Plaintiffs claim that paragraphs 9, 10, and 57 sufficiently allege a foreseeable harm.
“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512.)
At issue here is the element of duty. “The existence of a duty is a question of law for the court.” (Ann M. supra, 6 Cal.4th 666, 674.) “By now it is well established that landowners must maintain their premises in a reasonably safe condition, and that in the case of a landlord, the general duty of maintenance includes ‘the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.’” (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189 disapproved of on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 and Reid v. Google, Inc. (2010) 50 Cal.4th 512 [citing Ann M. supra, 6 Cal.4th 666, 674].)
For “a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.” (Ann M. supra, 6 Cal.4th 666, 676.) “[F]oreseeability is determined in light of all the circumstances and not by a rigid application of a mechanical ‘prior similar’ rule.” (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 502.)
Here, Plaintiffs have not alleged any circumstances that would make the alleged attack on Plaintiffs foreseeable to the property owner. Rather, paragraph 57 is a conclusion of law that Defendant “possessed knowledge, or should have known, of the reasonably dangerous, hazardous, and/or unsafe conditions at the Subject Premises and did not take precautions to alleviate and/or eliminate the reasonably dangerous, hazardous, and/or unsafe conditions at the Subject Premises.” (Complaint, ¶ 57.) (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) As alleged the complaint does not “set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exch. (2005) 132 Cal.App.4th 1076, 1099.)
Accordingly, the Demurrer to the second cause of action for negligence against Defendant ERP Operating Limited Partnership (erroneously sued as EQUITY RESIDENTIAL) is well taken and SUSTAINED WITH LEAVE TO AMEND.
Plaintiff shall have 30 days leave to amend.
Defendant to give notice