Judge: Steven A. Ellis, Case: 23STCV31457, Date: 2024-09-12 Tentative Ruling

Case Number: 23STCV31457    Hearing Date: September 12, 2024    Dept: 29

Wood v. City of Los Angeles
23STCV31457
Demurrer filed by Defendant Mariposa Landscapes, Inc.

Tentative

The demurrer is sustained in part and overruled in part.

Background

On December 26, 2023, Brian Grant Wood (“Plaintiff”) filed a complaint against City of Los Angeles (“City”), County of Los Angeles (“County”), the State of California (“State”), the State of California Department of Transportation (“DOT”), Caltrans, and Does 1 to 100, arising out of an incident on August 6, 2023, in which Plaintiff alleges that he was severely injured by a fixture in the street median located near 3960 S. Vermont Avenue in Los Angeles.  Plaintiff asserts causes of action for: (1) dangerous condition of public property; and (2) general negligence.

On March 6, 2024, County filed an answer.

On April 10, 2024, City filed an answer and a cross-complaint against State, DOT, County, Los Angeles Memorial Coliseum Commission, and Roes 1 through 10.

On April 23, 2024, the Court, at the request of City, dismissed the causes of action against County in the cross-complaint.

On May 16, 2024, Plaintiff amended the complaint to name Community Resource and Talent Development (“CRTD”) as Doe 1, University of Southern California (“USC”) as Doe 2, and Mariposa Landscapes, Inc. (“Mariposa”) as Doe 3. University of Southern California filed an answer on August 23.

On June 20, City amended its cross-complaint to name CRTD as Roe 1.

On July 25, 2024, the Court, at the request of City, dismissed the causes of action against State in the cross-complaint.

On August 23, 2024, USC filed an answer to the complaint.

Currently before the Court, and set for hearing on September 12, is a demurrer to the complaint filed by Mariposa on August 13, 2024.  Plaintiff filed an opposition on August 28, and Mariposa filed a reply on September 5.

Legal Standard

Code of Civil Procedure section 430.10 provides:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

A demurrer tests the legal sufficiency of the complaint or other pleading.  In ruling on a demurrer, the Court accepts as true “all material facts properly pleaded,” along with “matters that may be judicially noticed.”  (Centinela Freeman Emergency Medical Associates v. Health Net of California (2016) 1 Cal.5th 994, 1010; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court need not, however, accept the truth of contentions or conclusions of law contained in the pleading.  (Centinela, supra, 1 Cal.5th at p. 1010; Blank, supra, 39 Cal.3d at p. 318.) 

A demurrer may address only defects that appear on the face of the pleading; other than judicially noticeable facts, no other extrinsic evidence may be considered.  (Blank, supra, 39 Cal.3d at p. 318; Guardian North Bay, Inc. v. Super. Ct. (2001) 94 Cal.App.4th 963, 971-972.)

It is not the function of the demurrer to challenge the truthfulness of the properly pleaded allegations of the complaint.  The Court accepts as true “even improbable alleged facts” as a demurrer is not the correct procedural posture to address “plaintiff’s ability to prove the factual allegations.”  (Marina Pacific Hotel and Suites v. Fireman’s Fund Insurance Company (2022) 81 Cal.App.5th 96, 104-105; accord Hacker v. Homeward Residential (2018) 26 Cal.App.5th 270, 280.) 

Courts must “liberally construe the pleading with a view to substantial justice between the parties” and must “give the complaint a reasonable interpretation, reading it as a whole and its parts in context.”  (Marina Pacific, supra, 81 Cal.App.5th at p. 105.)

A demurrer may be sustained only if 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.)

“When the ground of demurrer is based on a matter of which the court may take judicial notice …, such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice ….”  (Code Civ. Proc., § 430.70.)

Before filing a demurrer, the demurring party must meet and confer with the opposing party to determine “whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (Code Civ. Proc., § 430.41, subd. (a).)

Leave to amend should be granted when “there is a reasonable possibility that the defect can be cured by amendment.”  (Centinela, supra, 1 Cal.5th at p. 1010; Blank, supra, 39 Cal.3d at p. 318; Shaeffer v. Califia Farms (2020) 44 Cal.App.4th 1125, 1145.)

Discussion

The meet and confer requirement of Code of Civil Procedure section 430.41 has been satisfied. (Shonack Decl., ¶¶ 3 & 4.)

Mariposa contends each of the two causes of action in Plaintiff’s complaint fails to allege sufficient facts to state a cause of action against it and demurs under Code of Civil Procedure section 430.10(e).  Mariposa also contends that any cause of action against it is barred as a matter of law by the “Completed and Accepted” Doctrine.

First Cause of Action: Dangerous Condition of Public Property

Under Government Code section 835:

“[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

(Government Code § 835.)

Mariposa demurs to the First Cause of Action on a number of grounds, including that it is not a public entity and therefore not subject to liability under Government Code section 835 or any of the other Government Code provisions mentioned in the complaint.  Plaintiff concedes the point and does not (and likely could not reasonably) seek leave to amend.

Accordingly, Mariposa’s demurrer to the First Cause of Action in the complaint is sustained without leave to amend.

Second Cause of Action: General Negligence

Mariposa also demurs to the negligence cause of action in the complaint.  Mariposa argues that the complaint does not adequately allege the elements of a negligence claim against it.

The basic elements of a cause of action for negligence are: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) The existence and scope of duty are legal questions for the court.¿¿(Brown, supra, 11 Cal.5th at p. 213; Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 36.)

Civil Code section 1714 provides: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) This establishes what the California Supreme Court has described as the “default rule” that every person has a legal duty “to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)  “In a contract for services, a contracting party may be liable for negligence in the performance of those services or failure to perform.” (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 258.)

The Court has carefully reviewed the allegations of the complaint.  Liberally construing those allegations, Plaintiff alleges that Mariposa (along with the other defendants) designed, constructed, installed and/or maintained a dangerous and hazardous condition.  (Complaint, ¶ 31; see also id., ¶ 14 [incorporated by reference into the Second Cause of Action].)  Further, Plaintiff alleges that Mariposa failed to provide proper barriers, protection, signs, or warnings to protect Plaintiff and other members of the public from this danger.  (Id., ¶ 30.)  This was, according to Plaintiff, a breach of Mariposa’s duty to use reasonable care.  (Id., ¶ 31.)  And this breach, it is alleged, was the proximate and legal cause of Plaintiff’s injuries.  (Id., ¶ 33-34; see also id., ¶ 12 [incorporated by reference into the Second Cause of Action].)

Given California’s liberal notice pleading standards, this is a sufficient pleading of a negligence cause of action against Mariposa.

In the alternative, and independently, Mariposa argues that the negligence cause of action alleged against it is barred, as a matter of law, by the “Completed and Accepted” Doctrine.  As the Court of Appeal has explained:

“[W]hen a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed.  [Citation.]  The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner’s acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect.” 

(Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 712, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512.) 

“If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.” (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1467.) “A “latent” defect is one that is “not apparent by reasonable inspection.” (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 257.)

It may be that, on the facts, Mariposa has a defense under the Completed and Accepted Doctrine.  Or perhaps not.  But the Court cannot adjudicate this defense, as a matter of law and in Mariposa’s favor, based on the allegations in the complaint.  Nothing in the complaint addresses whether the work was complete prior to Plaintiff’s accident, whether the owner accepted it, and whether the allegedly dangerous condition was patent or latent.  The applicability of this defense must be determined at a later stage of these proceedings.  On the pleadings, the Court cannot conclude that Plaintiff’s negligence cause of action against Mariposa is barred as a matter of law.

Accordingly, the demurrer to the Second Cause of Action in the complaint is overruled.

Conclusion

The Court SUSTAINS Mariposa’s demurrer to the First Cause of Action in the complaint, without leave to amend.

The Court OVERRULES Mariposa’s demurrer to the Second Cause of Action in the Complaint.

Moving Party is to give notice.