Judge: Sarah J. Heidel, Case: 22BBCV00144, Date: 2024-12-05 Tentative Ruling

Case Number: 22BBCV00144    Hearing Date: December 5, 2024    Dept: V

RAFIK DERMEHRABIAN,

Plaintiff,

vs.

COSTCO WHOLESALE CORPORATION, and DOES 1 to 50, Inclusive,

Defendants.

Case No.: 23BBCV00144

Hearing Date: December 5, 2024

Time: 8:30 a.m.

[TENTATIVE] ORDER RE: DEFENDANT COSTCO WHOLESALE CORPORATION’S DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTIES: Defendant COSTCO WHOLESALE CORPORATION

RESPONDING PARTY: Unopposed

The court considered the moving papers.

BACKGROUND

This is a premises liability action. Plaintiff Rafik Dermehrabian filed the complaint against defendant Costco Wholesale Corporation on January 23, 2023. Plaintiff alleges general negligence and premises liability causes of action. Plaintiff alleges that on January 25, 2021, at 1051 Burbank Boulevard, Burbank, California 91506, defendant failed to maintain the subject property, defendant knew of the condition, and plaintiff sustained severe injuries as a result of the unsafe condition.

Defendant filed the demurrer on October 15, 2024. No opposition has been received. Plaintiff filed a first amended complaint on November 21, 2024.

LEGAL STANDARD

A party may object to a complaint or cross-complaint; the party may file a demurrer, an answer, or both. (Code of Civ. Proc., § 430.30.) The demurrer may be filed within 30 days after service of the complaint or cross-complaint unless extended by stipulation or court order. (Code of Civ. Proc. § 430.40(a).)

As a general matter, 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. (Id.) 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.)

DISCUSSION

Plaintiff filed the first amended complaint on November 21, 2024. Under Code of Civil Procedure section 472, a party may amend its pleading once without leave of court after a motion to strike is filed, but before the motion to strike is heard, if the amended pleading is filed and served no later than the date the opposition to the motion to strike must be filed, nine court days before the hearing of the motion. (Code Civ. Proc., § 472(a), 1005(b).) However, an amendment to the pleading after the date for filing an opposition to the motion to strike requires stipulation by the parties. (Code Civ. Proc., § 472(a).)

The hearing date is December 5, 2024, and nine court days before the hearing would make the opposition due date November 20, 2024. Plaintiff filed the first amended complaint on November 21, eight days before the hearing. Under Code of Civil Procedure section 473(a)(1), the court may grant plaintiff leave to amend its complaint in the furtherance of justice. The initial complaint was deficient in that plaintiff provided little to no facts as to what events occurred, what the dangerous condition was, and how plaintiff was injured. The court grants plaintiff leave to amend the complaint, and deems the first amended complaint filed, and the operative complaint.

Based on the foregoing, the court deems the first amended complaint filed. As the first amended complaint is now the operative complaint, the court did not consider the demurrer on the merits.