Judge: Steven A. Ellis, Case: 22STCV30927, Date: 2024-07-30 Tentative Ruling

Case Number: 22STCV30927    Hearing Date: July 30, 2024    Dept: 29

Demurrer filed by Defendant ABM Industry Groups, LLC
Demurrer filed by Defendant Schindler Elevator Corporation.

Tentative

Both demurrers are sustained with leave to amend.

Background

On September 21, 2022, Luvleighan Clark (“Plaintiff”) filed a complaint against City of Los Angeles (“City”), County of Los Angeles (“County”), Los Angeles County Metropolitan Transportation Authority (“Metro”), and Does 1 through 100 asserting causes of action for (1) Liability for Dangerous Condition of Public Property, pursuant to government Code section 835 et seq., (2) Vicarious Liability for the Wrongful Acts or Omissions by Public Entity Employees and/or Retention of Unfit Employee under Government Code section 815.2; (3) Premises Liability, and (4) Negligence, all arising out of an alleged trip and fall on on October 20, 2021, on a sidewalk at or near 660 South Figueroa Street in downtown Los Angeles.

On December 13, 2022, County was dismissed.

After the Court sustained Metro’s demurrer, with leave to amend, Plaintiff filed a First Amended Complaint (“FAC”) on December 20, 2022, asserting the same causes of action against the same defendants.

Metro filed a motion to strike, and then the Plaintiff and Metro filed a stipulation, which the Court approved, for Plaintiff to file a Second Amended Complaint (“SAC”).  Plaintiff filed the SAC on February 14, 2023, this time asserting only one cause of action, for Liability for Dangerous Condition of Public Property, pursuant to government Code section 835 et seq., against the same defendants.

On April 6 and 12, 2023, City and Metro filed answers to the SAC.

On May 9, 2023, Plaintiff amended the complaint to name NREA TRC 700 LLC (“NREA”) as Doe 1. On September 20, 2023, NREA filed an answer to the SAC.

On March 26, 2024, Plaintiff amended the complaint to name Schindler Elevator Corporation (“Schindler”) as Doe 1 (even though Plaintiff had already named a different entity as Doe 1); CBRE as Doe 2; ABM Engineering, Inc. (“ABM”) as Doe 3; and UG2 LLC as Doe 4.

On July 9, 2024, CBRE, Inc. (erroneously sued as CBRE) (“CBRE”) filed an answer to the SAC and a cross-complaint against Roes 1 through 10.

As it relates to the matters set for hearing on July 30, ABM and Schindler demurred to the SAC on June 7, 2024.  On July 17, 2024, Plaintiff filed a combined opposition stating (among other things) that Plaintiff intended to file a Third Amended Complaint.  (Plaintiff filed a motion seeking leave to file a Third Amended Complaint on July 24; it is set for hearing on August 19.)  ABM filed a reply on July 24.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.) 

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; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can be sustained only when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Meet and Confer Requirement

"Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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).)

A demurring party must file and serve, with the demurrer, a declaration that states either that the parties met and conferred and did not resolve the issue or 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., subd. (a)(3).)

Here, counsel for the demurring parties each filed declarations stating that Plaintiff failed to respond to their meet and confer requests.  (Schrader Decl., ¶¶ 3, 4; Tsair Decl., ¶¶ 3, 4.) Accordingly, the demurring parties have satisfied their obligations under Code of Civil Procedure section 430.41, subdivision (a).

Discussion

Defendants ABM and Schindler demur to the SAC on the same ground: the lone cause of action is for a dangerous condition of public property under Government Code section 835 et seq., but ABM and Schindler are each private entities and therefore not subject to Government Code section 835.

Plaintiff filed an opposition stating an intent to file an amended complaint, without any argument as to the legal sufficiency of the SAC as against the demurring defendants ABM and Schindler.

The Court has reviewed the SAC and concludes that it does not state facts sufficient to constitute a cause of action as against ABM and Schindler.  As private entities, they are not subject to Government Code section 835.  Accordingly, the Court sustains the two demurrers.

The Court grants Plaintiff leave to amend.  This case involves a fall on the steps of the 7th Street/Metro Center subway station.  (SAC, ¶ 9.)  There is at least a reasonable possibility that, through amendment, Plaintiff will be able to allege facts sufficient to constitute a cause of action against ABM and Schindler – either because they exercised some degree of maintenance or control of the premises or otherwise.

Conclusion

The Court SUSTAINS ABM’s demurrer to Plaintiff’s Second Amended Complaint.

The Court SUSTAINS Schindler’s demurrer to Plaintiff’s Second Amended Complaint.

The Court GRANTS Plaintiff leave to file an amended complaint within 14 days of notice of ruling.

Each moving party is to give notice.