Judge: Steven A. Ellis, Case: 23STCV13023, Date: 2023-09-05 Tentative Ruling

Case Number: 23STCV13023    Hearing Date: October 31, 2023    Dept: 29

TENTATIVE

Defendant 1353 N. Avenue, LLC’s demurrer is OVERRULED.

Background

On June 7, 2023, Plaintiff Jennifer Carrillo (“Plaintiff”) filed a complaint against 1353 N. Western Avenue, LLC (“Defendant”) and DOES 1 through 50, asserting causes of action for (1) general negligence and (2) premises liability. In her Complaint, Plaintiff alleged that on or about July 13, 2021, Plaintiff was riding her electric scooter on a sidewalk adjacent to Defendant’s premises, encountered a broken stretch of sidewalk, struck it, fell off the scooter, and sustained injury.

On September 5, 2023, the Court sustained Defendant’s demurrer to the Complaint, with leave to amend. Plaintiff filed her First Amended Complaint (“FAC”) on September 18, 2023. 

Defendant demurred to the FAC on October 4. Plaintiff filed her opposition on October 18, and Defendant filed its reply on October 20.

Legal Standard

A general demurrer may be made on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) In ruling on a demurrer, a court must read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Berkley v. Dowds¿(2007) 152 Cal.App.4th 518, 525.) Moreover, a “demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted]; see also, e.g., Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The only issue that the court may consider is whether the complaint, as it stands, unconnected with extraneous matters (other than judicially noticeable matters), states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ 

¿ 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.¿ (Doe v. City of Los Angeles¿(2007) 42 Cal.4th 531, 550.)¿ “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”¿ (Rannard¿v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)¿¿Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged, but “must dispose of an entire cause of action to be sustained.”¿ (Poizner v. Fremont General Corp.¿(2007) 148 Cal.App.4th 97, 119.)¿¿

When a demurrer is sustained, courts generally must grant leave to amend “if there is any reasonable possibility that the defect can be cured by amendment.”¿ (Goodman v. Kennedy¿(1976) 18 Cal.3d 335, 349.)

Meet and Confer

The demurrer is accompanied by the declaration of counsel that satisfies the meet and confer requirements. (Code Civ. Proc., § 430.41, subd. (a).)

Discussion

First Cause of Action for General Negligence

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

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.) But “[a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)

“Under the common law, a landowner does not have any duty to repair abutting sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks.” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490 (citing Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 325).) Under Streets and Highways Code section 5610, abutting property owners do bear the duty to repair defects in the sidewalk, regardless of whether they created the defects. (Id.; see also Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) Nonetheless, under the so-called “Sidewalk Accident Doctrine,” abutting property owners have no duty to members of the public in tort law, and are not liable to members of the public, unless the property owner created the defect or exercised dominion or control over the abutting sidewalk. (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255; Jordan, supra, 148 Cal.App.4th at pp. 1490-91 [Section 5610 “imposes a duty of repair on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create tort liability to injured pedestrians or a duty to indemnify municipalities, except where a property owner created the defect or exercised dominion or control over the abutting sidewalk”]; see also Contreras v. Anderson (1997) 59 Cal.App.4th 188, 196; Jones, supra, 152 Cal.App.3d at pp. 802-803.)

In the original Complaint, Plaintiff alleged that the accident occurred not on property owned, maintained, managed, operated, or controlled by Defendant but “on the sidewalk adjacent to” Defendant’s property. (Complaint, ¶ GN-1, PL-2, at p. 4 & ¶ Prem.L-1 at p. 5.) Accordingly, under the Sidewalk Accident Doctrine, Plaintiff’s claims were not sufficient to state a cause of action against Defendant. (See, e.g., Lopez, supra, 55 Cal.App.5th at pp. 256-261.)

In the FAC, Plaintiff now alleges that Defendant “owned, maintained, controlled, managed, and operated the premises and abutting sidewalk located at 1353 N. Western Avenue” and that the accident occurred on property that Defendant “owned, maintained, controlled, managed, and operated.” (FAC, ¶¶ GN-1, PL-1 to -2, at p. 4 & Prem.L-1, at p. 5.) Although Defendant dismisses this change as a “minor adjustment” (Dem. at 1), it is anything but. In the Complaint, Plaintiff alleged that the accident occurred on property abutting Defendant’s, but there was no allegation that Defendant exercised any control over that site of the accident. Now, in the FAC, in contrast, Plaintiff alleges that the site of the accident was on property that Defendant owned, maintained, controlled, managed, and operated. Ownership or control of property is an ultimate fact that may be pleaded in general terms; detailed evidentiary pleading is not required.

In sum, Plaintiff has cured the defect in her Complaint. Defendant’s demurrer to the negligence cause of action in the FAC is OVERRULED.

(Defendant’s argument regarding illegal use of a scooter involves matters outside of the four corners of the FAC and so cannot be reached on demurrer.)

Second Cause of Action for Premises Liability

“The elements of a cause of action for premises liability are the same as those for negligence.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) Just as the allegations in the FAC are sufficient to support the cause of action for general negligence, the allegations are sufficient to support a cause of action against Defendant for premises liability.

For that reason, Defendant’s demurrer to the second cause of action is also OVERRULED.

Conclusion

Defendant’s demurrer is OVERRULED.

Defendant is ordered to file a responsive pleading within 30 days.

Moving party is ordered to give notice.