Judge: Serena R. Murillo, Case: 20STCV44792, Date: 2023-04-18 Tentative Ruling
Case Number: 20STCV44792 Hearing Date: April 18, 2023 Dept: 29
TENTATIVE
Defendant S.Y. Chow
and Son LLC’s Motion for Judgment on the Pleadings is DENIED.
Legal Standard
A defendant may move for judgment on the pleadings where the court has no jurisdiction of the subject of the cause
of action alleged in the complaint or the complaint does not state facts sufficient to
constitute a cause of action against that defendant. (Code Civ. Proc., §
438 subd. (c)(1)(B).) A non-statutory motion for judgment on the
pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) “Such motion may
be made on the same ground as those supporting a general demurrer, i.e., that
the pleading at issue fails to state facts sufficient to constitute a legally
cognizable claim or defense.” (Ibid.)
“In the construction of a pleading, for the
purpose of determining its effect, its allegations must be liberally construed,
with a view to substantial justice between the parties.” (Code Civ.
Proc., § 452; see also Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “When a
court evaluates a complaint, the plaintiff is entitled to reasonable inferences
from the facts pled.” (Duval v. Board of Tr. (2001) 93 Cal.App.4th 902, 906.) “In deciding or reviewing a judgment on the pleadings,
all properly pleaded material facts are deemed to be true, as well as all facts
that may be implied or inferred from those expressly alleged.” (Fire
Ins. Exch. v. Superior Court (2004) 116 Cal.App.4th 446, 452.) The grounds for a motion for judgment on the
pleadings must appear on the face of the challenged complaint or be based on
facts which the court may judicially notice. (§ 438(d); Tiffany v. Sierra
Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 225.) A motion for
judgment on the pleadings normally does not lie as to a portion of a cause of
action. (Ibid.) “In the case of either a demurrer or a motion for
judgment on the pleadings, leave to amend should be granted if there is any
reasonable possibility that the plaintiff can state a good cause of
action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.)
Request
for Judicial Notice
Defendant seeks judicial notice of the
following items: (1) the purported lease agreement of the subject property; (2)
the purported lease agreement and Plaintiff’s alleged testimony that
Plaintiff’s ex-husband affirmed receipt of one key to the premises and a remote
control device to open the building’s rear gate; (3) the fact admitted to in
Plaintiff’s deposition that Magana never lived at the subject property, but
intended for Plaintiff – his ex wife – and her children to live there; (4)
Plaintiff’s complaint; (5) that Plaintiff alleged in her Complaint that she
injured herself trying climb around the apartment’s front gate because she
believed the code for the gate mechanism had been changed without her
knowledge, and that “fact that in her deposition she retracted that allegation
and claimed she had difficulty operating the mechanism”; (6) “the fact admitted
to in Plaintiff’s deposition that she did not receive a key to the front gate
from Orlando Magana”; (7) the facts admitted to in Plaintiff’s deposition that
she had a functioning remote to open the building’s back gate and that she had
loaned it to her son Orlando Jr. the day of the incident; (8) the facts
admitted to in Plaintiff’s Complaint that she injured herself attempting to
climb around the front gate; and (9) the facts admitted to in Plaintiff’s
deposition that after the incident she called Orlando Jr. and asked him to
return and drive her to the hospital, which he did.
A court may take
judicial notice of the “[r]ecords of (1) any court of this state ....” (Evid.
Code, § 452, subd. (d).) Thus, unquestionably, a “court may judicially notice
its own records and proceedings in the same case. [Citations.]” (City etc.
of San Francisco v. Carraro (1963) 220 Cal.App.2d 509, 527.)
“It is true that a court may take judicial notice of a party's
admissions or concessions, but only in cases where the admission ‘cannot
reasonably be controverted,’ such as in answers to interrogatories or requests
for admission, or in affidavits and declarations filed on the party's behalf.
[Citations.]” (Arce v. Kaiser Foundation Health Plan (2010) 181
Cal.App.4th 471, 485; see also Del E. Webb Corp. v. Structural Materials Co.
(1981) 123 Cal. App. 3d 604-605 [“The court will take judicial notice of
records such as admissions, answers to interrogatories, affidavits, and the
like, when considering a demurrer, only where they contain statements of the
plaintiff or his agent which are inconsistent with the allegations of the
pleading before the court.”].)¿“[A]dmissions or concessions of matters which
cannot be reasonably be controverted are properly considered on a motion for
judgment on the pleadings.¿ [citation omitted].”¿ (Evans v. California
Trailer Court, Inc. (1994) 28 Cal. App. 4th 540, 549.)¿
The request for
judicial notice of Item 1, namely, the lease agreement, is DENIED. Defendant
has not cited any authority to grant judicial notice of the lease agreement
besides the authority under Arce v. Kaiser Foundation Health Plan (2010)
181 Cal.App.4th 471, 485. However, while Defendant argues Plaintiff
authenticates the lease agreement, she actually states she is not sure if that
lease agreement is the same one her ex-husband signed. (Duenas Depo., 47:2-25, 65:11-23.) As such, this testimony is not an admission or concession that
cannot reasonably be controverted as Plaintiff has not authenticated the lease
agreement in question.
The request for
judicial notice of Item 2 is DENIED. The request is denied as to the lease
agreement as discussed above. Second, as to Plaintiff’s deposition testimony
where defendant argues Plaintiff’s ex-husband affirmed receipt of one key to the premises and a remote
control device to open the building’s rear gate (Duenas
Depo., 47:2-20, 65:11-23) –the cited testimony does not confirm that Magana had
a key and a remote control, and the Court is unable to find where in
Plaintiff’s deposition testimony she states that Magana had a key and a remote
control. It follows that there have been no admissions or concessions made by
Plaintiff. Thus, the request is DENIED.
As to request for judicial notice
of Item 3, “the fact admitted to in Plaintiff’s deposition that Magana never
lived at the subject property, but intended for Plaintiff – his ex wife – and
her children to live there” (Duenas Depo., 48:2-7, 48:24-49:2), the request is
GRANTED.
As to Item 4,
pursuant to Evidence Code §§ 452(d) and 453, Defendant’s request for judicial
notice of the complaint is GRANTED.
As to Item 5, Defendant argues
that pursuant to Evidence Code Sections 452(d), (h) 453, and Arce v.
Kaiser Foundation Health Plan, Inc., (2010) 181 Cal. App. 4th 471, 485,
Defendant requests that the court take judicial notice of the facts that
Plaintiff alleged in her Complaint that she injured herself trying climb around
the apartment’s front gate because she believed the code for the gate mechanism
had been changed without her knowledge, and that fact that in her deposition
she retracted that allegation and claimed she had difficulty operating the
mechanism. (Duenas Deposition Testimony 23:24-24:22, 29:21-23.)
However, the cited portion of
Plaintiff’s deposition provides: “So we were trying to get into our building.
Our building has a gate, and it has a code.
You put in the code for the door to open. We tried to do the code, and we did it a few
times. It wouldn't open. We waited for a little bit to see if anyone
would come and so on but, you know, no one was coming.” (Duenas Depo., 23:24-24:22.)
The testimony further states that
the gate code has never changed. (Id., 29:13-22.)
The first cited testimony merely
demonstrates Plaintiff’s inability to open the gate despite inputting the code.
This would support the allegation that someone changed the code, because the
code she had was not working. Further, nowhere in the cited testimony does Plaintiff
retract her statement that someone changed the code. The second testimony cited
to merely provides that the code had never changed. However, it is not clear
whether Plaintiff is confirming the code had never changed prior to the day of
the incident, or the code had never changed, including the day of the incident.
This testimony does not clearly state that the code was not changed on the date
of the incident. Thus, these are not concessions or admissions and the Court
therefore DENIES this request for judicial notice.
As to Item 6, “the fact admitted
to in Plaintiff’s deposition that she did not receive a key to the front gate
from Orlando Magana,” this testimony states that Plaintiff never received a key
from management, not that she never received a key from Magana. Therefore, the
request for judicial notice of item 6 is DENIED as it is unclear what
admissions or concessions are made.
In request for judicial notice
item 7, Defendant requests judicial notice of the facts admitted to in
Plaintiff’s deposition that she had a functioning remote to open the building’s
back gate and that she had loaned it to her son Orlando Jr. the day of the
incident.
This request is
GRANTED as to Plaintiff’s testimony that there was another device to access the
building, i.e., the remote control to the rear gate. (As corrected by the
notice of errata, Duenas
Depo., 43:3-22, 46:4-10.) This
contradicts the complaint’s allegation that there was no other safe
means of entry available to tenants besides the code which did not work.
(Complaint pg. 3.)
As to item 8, “the facts admitted
to in Plaintiff’s Complaint that she injured herself attempting to climb around
the front gate,” the Court has already granted judicial notice of the
complaint. Nevertheless, the request for judicial notice of item 8 is GRANTED.
Under request for
judicial notice of item 9, pursuant
to Evidence Code Section 452(h) and Arce v. Kaiser Foundation Health Plan,
Inc., (2010) 181 Cal. App. 4th 471, 485, Defendant requests judicial notice
of the facts admitted to in Plaintiff’s deposition that after the incident she
called Orlando Jr. and asked him to return and drive her to the hospital, which
he did. The request is GRANTED as it tends to show that there was another
reasonable means of entry to the building because she could have called Orlando
Jr. to gain access to the building via the remote control in the car he was
borrowing.
Discussion
Meet and Confer
The motion is accompanied by the
declaration of Douglas J. Lief, which satisfies the meet and confer
requirements. (Code Civ. Proc. § 439(a)(2).)
Merits
Defendant moves for judgment on
the pleadings, arguing that certain facts were admitted to by Plaintiff in
discovery, and therefore are subject to judicial notice. First, Defendant
argues that Plaintiff’s ex-husband signed the lease indicating receipt of the
front gate key, and Plaintiff admitted she herself possessed a remote control
to open the building’s rear gate. Therefore, Defendant argues, assuming the
front gate did malfunction, that did not cause harm because she had at least
one alternate method of ingress.
The elements of a cause of action for premises
liability are the same as those for negligence: duty, breach, causation, and
damages.¿¿(Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994,
998.)¿¿Those who own, possess, or control property generally have a duty to
exercise ordinary care in managing the property¿to¿avoid exposing others to an
unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014)
232 Cal.App.4th 32, 37.)¿¿The existence and scope of duty are legal questions
for the court.¿¿(Id.¿at¿36.)
Causation
Defendant first argues that Plaintiff’s
complaint alleges that she was locked out because the gate’s unlocking code was
changed without her knowledge; she later admitted the code never changed, thus
eliminating the linchpin of her allegations. However, as discussed above, this
is not what Plaintiff stated in her deposition, and thus, the request for
judicial notice of this “admission” has been denied.
Next, Defendant argues that Magana, the
tenant who signed a lease with Defendant, affirmed that he received an entry
key to the front gate. However, as discussed above, the lease agreement offered
by Defendant has not been authenticated or admitted to by Plaintiff and the
cited portion of testimony does not state that Magana had a key. As such, this
request for judicial notice has been denied as well.
Lastly,
Defendant’s assertion that Plaintiff made an admission in her deposition that
she possessed a functioning key to an alternative entrance – the remote that
opened the rear garage gate -- has merit. This admission has been judicially
noticed, and it contradicts the complaint’s allegations that there was no other
reasonable entry into the building besides the access code. Nevertheless, this
does not negate the causation element of the negligence and premises liability
causes of action as Defendant argues it does.¿ Rather, this is relevant to
Plaintiff’s comparative fault. Plaintiff’s total
damages are not recoverable to the extent his or her own negligence contributed
to the injuries. Rather, awardable damages must be proportionately reduced to
reflect the percentage of plaintiff’s “fault.” (Li v. Yellow Cab Co.
(1975) 13 Cal.3d 804, 828–829.) The trier of fact determines what percentage of
the fault that caused the injuries was attributable to plaintiff and then
reduces gross damages by that percentage. Thus, some amount of damages is
recoverable even if plaintiff's negligence is equal to or greater than defendant’s.
(See also Zavala v. Regents of Univ. of Calif. (1981) 125 Cal.App.3d
646; CACI 405, 3960; BAJI 14.90, 14.91.)
In
addition, even if Plaintiff had an alternative means of entering the building,
based on the facts judicially noticed, the complaint sufficiently states a
cause of action because the remote control which provided access to the
building was not in her possession at the time as it was inside her car which
her son was borrowing. The fact that there was another means of entry into the
building does not negate causation here because that means of entry was not
immediately accessible to Plaintiff.
As
such, the motion for judgment on the pleadings is denied as to this ground.
Duty
Second, Defendant argues that
Defendant does not have an actionable duty to inspect its property for purposes
of discovering any possible opening allowing unauthorized entry into the
premises. (Bisetti v. United Refrigeration Corp. (1985) 174 Cal. App. 3d
643, 651). It also has no duty to make safe a method of trespassory entry. As
such, even if the front gate malfunctioned, Defendant does not have a duty to
foresee injuries caused by tenants attempting to break into the building.
However, Defendant
mischaracterizes the duty alleged in the complaint. Plaintiff does not allege
that Defendant has duty to inspect its property for purposes of discovering any
possible opening allowing unauthorized entry into the premises, or a duty to
make safe a method of trespassory entry. The complaint merely alleges that Defendant
had an affirmative duty to maintain and manage its property such to avoid
exposure of tenants and all lawful occupants to unreasonable risk of harm.
Nothing that has been judicially noticed negates this allegation pertaining to
duty in Plaintiff’s complaint.
Defendant argues it does have a statutory
duty to tenants not to willfully “prevent the tenant from gaining reasonable
access to the property by changing the locks or using a bootlock or by any
other similar method or device.” (Civil Code Section 789.3(b)(1).) Then
Defendant argues that Plaintiff admits Defendant did not violate this provision
because she retracted her allegation that the gate mechanism’s code was
changed. However, as discussed above, the Court finds that Plaintiff does not
retract that statement in her deposition testimony, and thus, the request for
judicial notice for this assertion has been denied.
As such, the motion for
judgment on the pleadings is also denied on this ground.
Conclusion
Accordingly, Defendant’s Motion
for Judgment on the Pleadings is DENIED.
Moving party is ordered to give notice.