Judge: William A. Crowfoot, Case: 19STCV37356, Date: 2022-09-01 Tentative Ruling

Case Number: 19STCV37356    Hearing Date: September 1, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On October 17, 2019, Plaintiff filed this action against Defendants for (1) dangerous condition of public property (Government Code §§ 815.2(a), 815.4, 829, 835, and 945), (2) violation of mandatory statutory duty (Government Code §§ 835 and 815.6), (3) general negligence, and (4) premises liability.

          This case involves numerous defendants and cross-complaints.

          At issue here is Defendants Barry Diller’s, individually and as trustee of the Arrow 1999 Trust (Does 53 and 78), and Felana Investments, SA’s (Does 59 and 84) demurrer to Plaintiff’s Complaint, filed on August 8, 2022. Plaintiff opposes.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.           Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) 

          Defense counsel Sherri Matta declares that counsels met and conferred prior to filing this motion. (Matta Decl., ¶¶2-3.)

          Based on the foregoing, the Court concludes that Defendant satisfied its meet and confer obligations. 

B.           Demurrer

Moving Defendants demur to the third and fourth causes of action on that basis that Plaintiff fails to state sufficient facts to constitute a cause of action against them and uncertainty.

1.           Request for Judicial Notice

Defendants request that the Court take judicial notice of the fact that 9573 Lania Lane and 9505 Lania Lane are separated by two properties between them and a distance of approximately 645 ft. The Court GRANTS the request. (Evid. Code § 452(h).)

2.           Third and Fourth Causes of Action: Negligence and Premises Liability

Defendants demur to the third and fourth causes of action based on uncertainty and failure to state sufficient facts. Specifically, Defendants argue that the Complaint is uncertain because it does not allege the location of the fall and it makes ambiguous and contradictory allegations regarding Defendants’ liability. Further, Defendants argue that the claims are duplicative. The Court agrees.

The Court finds the claims uncertain, and that the claims are duplicative of each other. The claims lump all defendants together and are conclusory regarding liability. The Complaint does not sufficiently put Defendants on notice of their role and liability with regard to the fall. This is especially ambiguous given the number of defendants in this case.

Further, the allegations are inconsistent regarding ownership/control of the property. At Paragraph 11, Plaintiff alleges that City of Beverly Hills, City of Los Angeles, and Does 1 to 50 own and control the public pathway, but then alleges that the pathway was owned and controlled by more defendants at Paragraph 18. Plaintiff also identifies the place of the fall as along the pathway near 9573 Lania Lane and/or 9505 Lania Lane, which are two distinct properties with two other addresses between them. (See RJN.) The location of the fall is ambiguous.

The claims are also duplicative. A demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) First, 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.) Thus, both causes of action are based on a negligence theory.  Second, the allegations in the premises liability cause of action are essentially identical to the allegations in the general negligence cause of action.

Accordingly, the demurrer is SUSTAINED with leave to amend.

IV.     CONCLUSION

Moving Defendants’ demurrer is SUSTAINED in its entirety with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.