Judge: William A. Crowfoot, Case: 22STCV16077, Date: 2022-10-28 Tentative Ruling

Case Number: 22STCV16077    Hearing Date: October 28, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 13, 2022, plaintiffs Beatriz Ballesteros and Vanessa Cupido (collectively, “Plaintiffs”) filed this action against defendants City of Los Angeles (“City”), and Yesenia Garcia and Santos Garcia (the individual defendants, collectively, “Defendants”).  On July 11, 2022, Plaintiffs filed the operative First Amended Complaint (“FAC”) indicating that they are successors-in-interest to decedent Alicia Flores (“Flores”).  Plaintiffs allege that on May 15, 2021, Flores was moving in a wheelchair on the sidewalk when an uplift caused her wheelchair to overturn.  Plaintiffs assert causes of action for:( (1) premises liability, (2) general negligence, (3) survival action, and (4) wrongful death action.  Plaintiffs also pray for punitive damages.

          Defendants each filed an answer on September 8, 2022, and on September 28, 2022, they filed this joint motion for judgment on the pleadings.  On October 17, 2022, Plaintiffs filed an opposition brief.  On October 21, 2022, Defendants filed a reply brief.

II.      LEGAL STANDARD

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.  [Citations.]”  (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.)  The court must assume the truth of all properly pleaded material facts and allegations, but not contentions or conclusions of fact or law.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.)  “A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action.  (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).)”  (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.)  “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.  [Citation.]”  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

III.     DISCUSSION

A.   Meet and Confer

Defense counsel Tamar Chobanian declares that on September 26, 2022, they called Plaintiff’s counsel in an attempt to meet and confer, but Plaintiff’s counsel did not answer the phone.  This is inadequate to satisfy the meet and confer requirements of Code of Civil Procedure section 439 because it did not take place “at least five days before the date [the] motion for judgment on the pleadings [was] filed.”  (Code Civ. Proc., § 439.)  Nevertheless, the Court proceeds to analyze the motion on its merits.

B.   Analysis

As an initial matter, Defendants’ use of this motion to challenge to Plaintiffs’ prayer for punitive damages is improper.  A motion for judgment on the pleadings may only be made on two grounds if the moving party is a defendant: (1) the court has no jurisdiction of the subject of the cause of action alleged in the complaint and (2) the complaint does not state facts sufficient to constitute a cause of action against that defendant.  (Code Civ. Proc., § 438, subd. (c)(1)(B).)  Accordingly, the motion with respect to the prayer for punitive damages is DENIED. 

Next, Defendants argue that Plaintiffs fail to state a cause of action because Plaintiffs do not plead facts alleging that Defendants owed Flores a duty.  As the elements of premises liability and negligence are the same, the Court addresses these arguments collectively.  Defendants contend that Plaintiffs present no facts to support their contention that Defendants owned, leased, occupied, or controlled the property.  Defendants also claim Plaintiffs do not properly plead any specific conduct which describes how Defendants were negligent in the use or maintenance of their property, especially as the incident was a public sidewalk over which Defendants had no custody or control.  Defendants additionally argue that Plaintiffs fail to assert facts to show that they knew or had reason to know of the uplift on the sidewalk.  Moreover, Defendants argue that Plaintiffs do not allege facts showing that Defendants were a substantial factor in causing Flores’s harm.  Furthermore, Defendants claim Plaintiffs do not allege any facts to support their contention that they failed to warn or guard the alleged dangerous condition, only that City and its employees failed to repair the defects (described as “off grades and missing pull box lid”) during a routine inspection. 

In opposition, Plaintiffs argue that their FAC is sufficiently pled and that further, they allege that “there is a pile of white rocks blocking the parkway.”  (FAC, Prem.L-1.)  “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.)  However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Plaintiffs allege that Defendants negligently owned, maintained, managed, and operated the premises at 13659 Garber Street in Arleta, California.  (FAC, Prem.L-1-Prem.L-2.)  Plaintiffs further allege that Defendants willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity.  (Prem.L-3.)  Plaintiffs also state that there was an “illegal pile of white decorative rock that was large mound [sic], blocking the length of the parkway.  Due to the steep mound the rocks were strewn across the sidewalk and street creating a dangerous condition to pedestrians.  In addition, there is a street tree in the parkway abutting the sidewalk uplift.  (FAC, GN-1.)  In Plaintiffs’ unnamed third cause of action, they allege that Flores’s wheelchair “came in Contact to [sic] the uneven sidewalk cracks and gravel which forced the wheelchair to flip over.”  (FAC, Third Cause of Action, ¶ 3.)  

          Although the FAC is not the most artfully drafted, it is sufficient to place Defendants on notice of Plaintiffs’ claims and its allegations are sufficient to plead claims for negligence and premises liability in a survival and wrongful death action.

IV.     CONCLUSION

Defendants’ motion for judgment on the pleadings is DENIED. 

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.