Judge: Ronald F. Frank, Case: 24TRCV03245, Date: 2024-11-14 Tentative Ruling
Case Number: 24TRCV03245 Hearing Date: November 14, 2024 Dept: 8
Tentative Ruling
HEARING DATE: November 14, 2024
CASE NUMBER: 24TRCV03245
CASE NAME: Georgiana Rosenkranz v. Cox Communications California, LLC, et al.
MOVING PARTY: Defendant, Cox Communications California, LLC
RESPONDING PARTY: Plaintiff, Georgiana Rosenkranz
TRIAL DATE: Not Set.
MOTION: (1) Demurrer
Tentative Rulings: (1) SUSTAINED. Plaintiff has twenty (20) days leave to amend.
I. BACKGROUND
A. Factual
On September 30, 2024, Plaintiff, Georgiana Rosenkranz (“Plaintiff”) filed a complaint against Defendants, Cox Communications California, LLC, Crown Castle Fiber, LLC, Inland Engineering Services, Inc., Frontier California, Inc., Line Works Construction, Inc., Southern California Edison Company, Southern California Gas Company, Henkels & McCoy, Inc., and DOES 1 through 25. The complaint alleges causes of action for: (1) Nuisance; and (2) Negligence. This action is based on Plaintiff’s allegations that she owns a home located at 384 Via Almar, Palos Verdes Estates, CA 90274 (“Subject Property”). (Complaint, ¶ 1.) Plaintiff asserts that under her home, as well as under a portion of the street directly in front of the Subject Property, there are underground utilities which include, but are not limited to, sewer line that serves the Subject Property, communications lines including fiber optic and other types of lines, gas and electrical. (Complaint, ¶¶ 17-18.) Plaintiff claims that as contractors, each of the Defendants performed work on the utilities located under the Subject Property or the near street involving boring and/or excavating to work on or install utilities that are located on, under, or adjacent to the Sewer Lines. (Complaint, ¶ 19.)
During their work, Plaintiff states that one or more of said contractors ruptured, broke, and/or pierced the Sewer Line and had a duty to either repair it and/or give the City and/or Plaintiff notice of the damage. (Complaint, ¶ 21.) However, Plaintiff alleges that the Contractors did not disclose the damage to the Sewer Line to the City or Plaintiff during their work, whether they caused it or observed it. (Complaint, ¶ 21.) Plaintiff’s complaint contends the Contractors concealed the damage from Plaintiff and from the City and back-filled the excavation and/or borings in the Street and paved over it without repairing the broken Sewer Line, further concealing the damage from Plaintiff and the City. (Complaint, ¶ 21.)
Based on the above, Plaintiff argues Defendants are liable for damages she suffered upon observations and photographs of the damaged sewer line including that her toilets on the Subject Property would not flush properly. (Complaint, ¶¶ 22-23.)
Now, Defendant, Cox Communications California, LLC (“Cox”) demurs to Plaintiff’s complaint on the grounds that Cox argues it is uncertain, ambiguous, and unintelligible.
B. Procedural
On October 21, 2024, Cox filed a demurrer to Plaintiff’s complaint. On October 24, 2024, Plaintiff filed an opposition brief. On October 30, 2024, Cox filed a reply brief.
II. ANALYSIS
A. Legal Standard
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)
A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
B. Discussion
i. Meet and Confer Requirement
The declaration of Jorge A. Lopez, Esq. (“Lopez Decl.”) is offered in support of Defendant Cox’s counsel’s compliance with Code of Civil Procedure section 430.41. Lopez declares that on October 10, 2024 and October 12, 2024 he emailed Plaintiff’s counsel regarding the ambiguity and uncertainty of the complaint in order to avoid having to file a demurrer. (Lopez Decl., ¶¶ 8-10.) However, Lopez states that he did not receive a response to either email. (Lopez Decl., ¶¶ 9-10.)
In opposition, Plaintiff’s counsel argues that on October 9, 2024, he advised Cox’s counsel that: (1) given the nature of the loss, only Defendants, and not Plaintiff, know when the damage causing the loss occurred; (2) that Plaintiff discovered the loss in October, 2022 when a plumbing contractor for the Gas Company informed Plaintiff that he had discovered the damage to the sewer pipe, and; (3) that Plaintiff repaired the damage in October, 2023 after the City and the utility defendants refused to do so. (Declaration of Mark B. Simpkins (“Simpkins Decl.”), ¶ 3.) Instead of agreeing to amend the Complaint to include these dates, Plaintiff apparently declined to do so. Thus, the court finds that Cox has met the meet and confer requirements.
ii. Uncertainty
Defendant Cox demurs to the complaint on the grounds that it argues the complaint is uncertain and ambiguous because Plaintiff does not state when the incident giving rise to her nuisance and negligence causes of action occurred or even when she discovered any sort of damage to her property. Defendant Cox argues even assuming the allegations in Plaintiff’s complaint are true, the action might be barred by the statute of limitations, but that Defendants would have no way of knowing this. Defendant Cox cites to George Pepperdine Foundation v. Pepperdine, where the Second District Court of Appeal held that when dates are material facts, the time of the occurrence of such facts must be stated with certainty. (George Pepperdine Foundation v. Pepperdine (1954) 126 Cal.App.2d 154, 162-163 (“Pepperdine”).)
In Pepperdine, which was overruled in part on other grounds, a company president brought an action against former directors of a charitable corporation to recover damages for loss resulting from the unsuccessful investment of corporation’s assets by president with acquiescence of former directors. (Id. at 154.) The Court of Appeal held that the trial court “committed no prejudicial error in sustaining any of [the special demurrers]” as the pleadings were “egregiously uncertain.” (Id. at 162.) The Court in Pepperdine reasoned that “[w]hile actions for negligence are barred after the lapse of two years from the act complained of no dates [were] given whereby it [could] be ascertained which investments were made after” a material date. (Ibid.) The Court further reasoned that “[n]either [could] it be ascertained which notes were sold after that date or which transactions were completed prior to…the date the action was filed.” (Ibid.) The same can be said here.
Here, Plaintiff in the case at bar fails to allege the date of the alleged breach of duty. Although Plaintiff’s opposition argues and relies on precedent holding that “[a] demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party” (Merlino v. West Coast Macaroni Mfg. Co. (1949) 90 Cal.App.2d 106, 108 ("Merlino")), Plaintiff’s reliance is misplaced. By not alleging any dates whatsoever, it is impossible for Defendants to be able to determine when, or even if they worked on or near the Sewer Pipe when it was damaged. At minimum, Plaintiff can certainly be able to allege the date or dates of discovery of facts upon which the allegations are based. Paragraph 23 alleges that after one or more of the contractors allegedly broke the sewer line, the Plaintiff’s toilets in the subject property would not flush properly. Paragraph 24 alleges that plaintiff hired plumbers, and an in Paragraph 25 that Matucci Plumbing notified Plaintiff that it had discovered a broken sewer line. Paragraph 26 alleges that Plaintiff incurred costs in identifying and repairing the alleged damages. The Complaint does not allege when these events occurred, and the Complaint is therefore uncertain and subject to demurrer. The “Discovery Rule” of delayed accrual of the statute of limitations applies to property damage cases, and it assists the plaintiff who may be blamelessly ignorant of the exact date of the defendants’ alleged actions. Formal discovery in a lawsuit may reveal facts of which the defendants may possess superior or exclusive knowledge, but that does not excuse the plaintiff from alleging a factual basis for the application of the Discovery Rule. For example, were plaintiff to allege that she first noticed problems with toilet flushing in October of 2022, hired a plumber in January of 2023, learned of the broken sewer line in April of 2023, and made the first payment for repair of the damage in June of 2023, such allegations would cure the uncertainty raised by the subject demurrer.
Plaintiff’s complaint, as currently pleaded, is uncertain. The demurrer is SUSTAINED, with twenty (20) days leave to amend.
III. CONCLUSION
For the foregoing reasons, Defendant Cox’s demurrer is SUSTAINED. Plaintiff is granted twenty (20) days leave to amend. Cox is ordered to give notice.