Judge: William A. Crowfoot, Case: 22STCV17594, Date: 2023-01-04 Tentative Ruling

Case Number: 22STCV17594    Hearing Date: January 4, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 27, 2022, plaintiff King Lara (“Lara”) and Leslie Velasquez (“Velasquez”) (collectively, “Plaintiffs”) filed this action against defendant Gevorg Khudyan (“Defendant”).  On September 20, 2022, Plaintiffs filed the operative First Amended Complaint (“FAC”).  Plaintiffs allege that Lara is a minor and Velasquez is Lara’s mother.  (FAC, ¶¶ 1.)  On July 7, 2020, Lara was on Defendant’s property located at 5835 Woodman Avenue in Van Nuys, California (“5835 Woodman”) when a gate fell on him.  (FAC, ¶ 11.)  Lara asserts causes of action for negligence, premises liability, and negligent infliction of emotional distress (“NIED”).  Velasquez also asserts an NIED claim as well as a breach of the implied covenant of good faith and fair dealing due to a residential lease agreement between Velasquez and Defendant.  (See FAC, ¶ 23-25.)  It is unclear whether the alleged residential lease agreement involved 5835 Woodman because Plaintiffs allege that 5835 is a commercial property.  (FAC, ¶ 9.) 

          On December 5, 2022, Defendant filed this demurrer to Lara’s causes of action for premises liability and NIED. 

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

Before filing a demurrer, the demurring 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).)  

          Defense counsel Andrew S. Attia declares that he discussed the deficiencies of the FAC with Plaintiffs’ counsel.  However, it appears that this discussion took place over written correspondence, not over the telephone or in person as required by the Code of Civil Procedure.  Therefore, the meet and confer requirement is not satisfied.  Nevertheless, the Court proceeds to address the merits of the demurrer. 

          Defendant argues that Lara’s cause of action for premises liability is duplicative of his negligence claim.  In opposition, Plaintiffs argue that a premises liability claim is distinct from a negligence claim as it “is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) 

There seems to be a split among the courts as to whether redundancy of a cause of action is a ground on which a demurrer may be sustained.  (Compare Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 (“[redundancy] is not a ground on which a demurrer may be sustained. . . . This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial or on a dispositive motion such as summary judgment.”) with Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (finding a demurrer was properly sustained without leave to amend as to a cause of action that contained allegations of other causes and “thus add[ed] nothing to the complaint by way of fact or theory of recovery”).  This court decides to follow the Blickman court’s approach and OVERRULES the demurrer to the second cause of action for premises liability on the grounds that it is duplicative of the first cause of action for negligence.  

          Defendant also argues that Lara’s NIED claim is improper because his emotional distress is a category of damages encompassed by his broader negligence claim.  The Court agrees.  California courts have repeatedly recognized that NIED is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (See, e.g., Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)  Accordingly, the demurrer to the Fourth Cause of Action is SUSTAINED without leave to amend.

IV.     CONCLUSION

Defendant’s demurrer to the Second Cause of Action for premises liability is OVERRULED.  Defendant’s demurrer to the Fourth Cause of Action for NIED is SUSTAINED without 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.