Judge: Virginia Keeny, Case: 22VECV01550, Date: 2023-02-24 Tentative Ruling

Case Number: 22VECV01550    Hearing Date: February 24, 2023    Dept: W

SYRUS PARVIZIAN v. WEST VALLEY UPHOLSTERY, INC., et al.

defendants west valley upholstery, inc. and steven whitefield’s DEMURRER

Date of Hearing:        February 24, 2023                 Trial Date:       None set.  

Department:              W                                            Case No.:        22VECV01550

Moving Party:            Defendants West Valley Upholstery, Inc. and Steven Whitefield

Responding Party:     Plaintiff Syrus Parvizian

Meet and Confer:      Yes. (Tsair Decl. ¶¶3-6.)  

BACKGROUND

Plaintiff Syrus Parvizian alleges he tripped and fell over a lifted portion of the sidewalk outside Defendant Whitefield’s property, West Valley Upholstery. On October 12, 2022, Plaintiff filed a complaint against Defendant Whitefield, West Valley Upholstery Inc., City of Los Angeles, and County of Los Angeles asserting causes of action for negligence and premises liability.

[Tentative] Ruling

Defendants West Valley Upholstery, Inc. and Steven Whitefield’s Demurrer is SUSTAINED WITH LEAVE TO AMEND.

ANALYSIS

Defendants West Valley Upholstery, Inc. and Steven Whitefield (collectively “Defendants”) demur to Plaintiff’s complaint for negligence and premises liability on the ground the complaint fails to state facts sufficient to constitute a cause of action against Defendants.

Negligence

To plead a cause of action for negligence, one must allege (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) “In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.)  In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)

Defendants demur to the first cause of action for negligence on the grounds the cause of action is uncertain. Defendants contend the complaint does not specify the time in which this fall allegedly occurred. Moreover, there is no “Hurt Street”—where Plaintiff allegedly tripped and fell— near Defendants’ business.

In opposition, Plaintiff argues on February 23, 2022, Plaintiff was walking on the sidewalk on Hart Street near Owensmouth Avenue when he tripped and fell as a result of a raised/uneven portion of the sidewalk. Although negligence may be pleaded in general terms, the complaint is unclear as to where the incident occurred. Plaintiff must amend the complaint to allege where the incident occurred and approximately what time of day the incident occurred.

Defendants further argue a landowner does not have any duty to repair sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks. Under the “sidewalk accident decisions” doctrine, an “abutting property owner is not liable in tort to travelers injured on the sidewalk, unless the owner somehow creates the injurious sidewalk condition.” (Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) However, it is not determinative that the defendant created the condition; absent some affirmative construct or alteration, the defendant must also have negligently created the hazard. (See Lopez v. City of Los Angeles, 55 Cal.App.5th at p. 256-258.) (“an owner or occupier can also be held liable for creating more temporary and fleeting hazards on abutting public property if it acts negligently in doing so.”)

In the instant matter, Plaintiff has failed to allege how Defendants created the injurious sidewalk condition. The complaint merely alleges Defendants had a duty to inspect, maintain, and/or repair the subject property and Defendants breached that duty when Plaintiff fell and tripped over a lifted portion of the sidewalk. Plaintiff has not alleged whether Defendants exercised dominion or control over the abutting sidewalk.

Accordingly, Defendants’ demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND. 

Premises Liability

To begin with, “[t]he elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)  In order to establish the element of causation in a premises liability claim, a plaintiff must show that the store owner either directly caused the dangerous condition or had actual or constructive knowledge of the dangerous condition. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-06.)

Defendants demur to the second cause of action on the same grounds. As stated for the reasons above, the court SUSTAINS WITH LEAVE TO AMEND Defendants’ demurrer to the second cause of action.