Judge: William A. Crowfoot, Case: 22STCV04837, Date: 2022-09-30 Tentative Ruling

Case Number: 22STCV04837    Hearing Date: September 30, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On February 8, 2022, plaintiff William Pena (“Plaintiff”) filed this action against defendants Ishmael Gill (“Gill”) and 831 43rd Street Partners LLC (“Defendant”).  Plaintiff alleges that on January 5, 2021, he was on Defendant’s premises when he was stabbed by Gill with a large machete due to an argument over the smoke from a bonfire.  (Compl., ¶ 8.)  Gill was Defendant’s tenant (Compl., ¶ 4.) 

On June 20, 2022, Defendant filed this demurrer arguing that Plaintiff’s cause of action against Defendant for negligence fails to state a cause of action. 

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

Meet and Confer

Before filing a demurrer, 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 states he did not receive a return call or email from Plaintiff’s counsel despite sending meet and confer correspondence and a copy of this demurrer on May 30, 2022.  The meet and confer requirement is satisfied. 

Negligence

To state a cause of action for negligence, a plaintiff must allege: (1) a legal duty to exercise due care; (2) breach of that legal duty; (3) proximate causation of an injury.  (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.¿  (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)¿  “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed.  He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)

Defendant argues that Plaintiff fails to state a cause of action against it because Plaintiff fails to allege ultimate facts giving rise to a duty of care.  Defendant argues that Plaintiff does not allege that Gill’s conduct was foreseeable and or the measures Defendant could have taken to prevent the harm. 

Instead, Plaintiff only alleges Defendant had a duty to control Gill and protect Plaintiff from physical and mental harm because of the special relationship between Plaintiff and Defendant created by Plaintiff’s status as a visitor.  (Compl., ¶¶ 34-35.)  Plaintiff alleges Defendant breached its duty of care when Gill aggressively approached Plaintiff on the subject premises, assaulted him, and stabbed Plaintiff with a large machete.  These general allegations are insufficient to state a cause of action.

As Plaintiff did not oppose this demurrer or show how amendment is possible, Defendant’s demurrer is SUSTAINED without leave to amend. 

IV.     CONCLUSION

Defendant’s demurrer is SUSTAINED without leave to amend and Defendant is dismissed from this action.

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.