Judge William A. Crowfoot, Case Number: 24NNCV00475, Date: 2024-12-06 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV00475, Date: 2024-12-06 Tentative Ruling

On March 25, 2024, plaintiff Rami Der-Artinian (“Plaintiff”) filed this action against defendant Ganahl Lumber Company (“Defendant”) asserting cause of action for negligence and premises liability.

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “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.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

Plaintiff alleges that on July 21, 2023, he was walking on the public sidewalk in front of Defendant’s store on East Colorado Blvd. (the “Premises”) when he tripped and fell over uneven or cracked pavement. (Compl., GN-1, Prem.L-1.) Plaintiff alleges Defendant negligently owned, maintained, managed, operated, and controlled the Premises. (Ibid.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (See, e.g., Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4^th 994, 998; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081). Therefore, in the absence of a statute, a landowner of property abutting a public street is generally not liable to persons injured as a result of a dangerous condition of public property, if the landowner did not create that condition. (Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 326-32.) “The reason for this rule is that a landowner generally has no right to control another’s property, including streets owned and maintained by the government.” (Vasilenko, supra, 3 Cal.5th at p. 1084.)

Defendant argues that Plaintiff’s Complaint fails because Plaintiff alleges that he tripped on a public sidewalk. Defendant contends that since the sidewalk was public, it owed no duty to Plaintiff because it did not own or control the sidewalk. (Demurrer, p. 5.) Defendant acknowledges that as a landowner abutting a public sidewalk, it has a duty to repair or reimburse the appropriate entity for the costs of repairs to the sidewalk, but argues that this duty does not extend to injuries sustained by third parties.

In opposition, Plaintiff does not identify any statute imposing a duty on Defendant to maintain the sidewalk. Instead, Plaintiff emphasizes that the sidewalk “serves as the sole access point to [Defendant’s] business.” (Opp., p. 5.) Defendant denies that only one point of entry to its store exists, but even if the sidewalk was the only means of entrance to Defendant’s store, it does not mean that Defendant created the unevenness of the pavement or that it has “dramatically asserted dominion and control” over the sidewalk, as required to establish liability. (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 256.) Plaintiff also suggests that Defendant “made defective alterations” to the public property for its exclusive benefit and argues that this is an issue of fact to be explored in discovery, but does not identify what the defective alteration (or resulting exclusive benefits) might be. (Opp., pp. 5-6.) Ultimately, Plaintiff must plead facts showing that Defendant owed him a duty. Plaintiff has not done so. Accordingly, the demurrer is sustained.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.