Case Name: Maria Jeronimo, et al. v. Norman Bird, et al.
Case No.: 17CV316303

I. Background

This case brought by Maria Guadalupe Jeronimo, individually and as Guardian ad Litem for Guadalupe Jeronimo Fernandez and Mireya Jeronimo Fernandez, minors, and as successor in interest to Leonardo Jeronimo Calderon (“Calderon”), Sonia Jeronimo Fernandez, Liliana Jeronimo Fernandez, Noemi Jeronimo Fernandez, Guadalupe Jeronimo Fernandez, a minor, and Mireya Jeronimo Fernandez, a minor, (collectively “Plaintiffs”) against Norman Bird (“Bird”), Mariam Hambersom (“Hambersom”), Alliance Credit Union (“Alliance”), and City of San Jose Dept. of City Planning, arises from a vehicle crashing into a business.

According to the allegations of the Third Amended Complaint (“TAC”), this series of unfortunate events began with a collision. Hambersom was driving her car south on Curtner Avenue when Bird made a right turn from Little Orchard onto Curtner. Hambersom’s vehicle clipped Bird’s vehicle. Hambersom’s vehicle then spun and crashed into the front entrance of an Alliance Credit Union building. Calderon was using or waiting near the front entrance of the Alliance Credit Union building as part of his work as a commercial painter. When the vehicle crashed into the Alliance Credit Union building it struck Calderon, who was pronounced dead at the scene. Plaintiffs are the family of the decedent, and bring suit against various parties for the loss of their husband and father.

The TAC includes causes of action for (1) motor vehicle negligence; (2) negligence; (3) premise liability; (4) dangerous condition on public property; (5) wrongful death and (6) survival damages.

Currently before the Court is Alliance’s demurrer to the second, third, fifth, and sixth causes of action in the TAC. These are all of the causes of action against it. It demurs on the ground of failure to state sufficient facts to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

The Court previously sustained a similar demurrer to the Second Amended Complaint (“SAC”) by Alliance. The Court reasoned Plaintiffs had not alleged these facts fit within the limited number of circumstances where injury by a vehicle that had left the roadway was considered foreseeable. In response, Plaintiffs filed the TAC. The TAC includes new allegations regarding vehicle collisions near the Alliance Credit Union building and legislation allowing insurers to offer discounts for installation of vehicle barriers.

II. Merits of the Demurrer

A. The Second and Third Causes of Action for General Negligence and Premise Liability

Alliance demurs to the second and third causes of action on the basis that Plaintiffs have not alleged the element of duty. This is the same general argument it made previously. As the Court stated before, duty is a necessary element of a negligence claim. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.) Duty is also required for a premise liability claim because premise liability is governed by negligence principles. (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) “The question whether a duty is owed is a question of law, for the court to decide.” (Ibid.)

In cases involving a duty to protect against harm from third parties, a duty is “…imposed only where such conduct can be reasonably anticipated.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 402.) The Court must determine, based upon a reasonableness standard, whether “ ‘in the opinion of a court, the degree of foreseeability is high enough to charge the defendant with the duty to act on it.’ [Citation.]” (Ibid.)

Alliance advances the same overarching argument with respect to duty it did previously; Plaintiffs have not alleged facts showing Calderon’s death was foreseeable, and therefore Alliance had no duty to prevent it. Plaintiffs counter that Calderon’s death was foreseeable, and Alliance had a duty to place barriers or bollards around the entrance to the credit union building to prevent it.

In arguing Calderon’s death was not foreseeable, Alliance relies heavily on Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990 (Jefferson). In Jefferson, a driver was trying to park his vehicle in front of a convenience store when he mistakenly pressed the accelerator rather than the brake. (Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 992.) The vehicle jumped the parking block and the curb before striking a minor who was standing on the sidewalk in front of a store. (Ibid.) The child’s guardian ad litem sued the store owner for premises liability and negligence. (Ibid.) The court considered whether the incident was foreseeable, and thus whether the store owner had a duty to prevent it. The court held that the accident was not sufficiently likely to be considered foreseeable, and therefore the defendant owed no duty to the minor.

The analysis in Jefferson is worth summarizing at length because it has similar facts and creates a framework for assessing foreseeability. The court stated that “a duty to take steps to prevent the wrongful acts of a third party ‘will be imposed only where such conduct can be reasonably anticipated.’ [Citation].” (Jefferson, supra 128 Cal. App. 4th at 992 [italics in original].) “When determining the existence of a duty, foreseeability is a question of law. [Citation.] The court must ascertain whether ‘the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.’” (Id. at p. 993 [emphasis in original].) The court framed the issue as “whether the instant accident was sufficiently likely to require the landowner to take more extensive measures than it did.” (Ibid.) The court cautioned “an act must be sufficiently likely before it may be foreseeable” which requires something more than being “simply imaginable or conceivable” because “[g]iven enough imagination, everything is foreseeable.” (Id. at p. 996 [emphasis in original].)

The Jefferson court reviewed many other cases involving cars leaving roadways or parking areas and causing injury to persons on private property. In the majority of those cases courts had held that injury to third parties was not sufficiently foreseeable as a matter of law, and found no duty. (Jefferson, supra 128 Cal. App. 4th at p. 993.) The Jefferson court also determined there were three sets of facts where courts had found injury was foreseeable, and the property owner could be liable. These exceptions were (1) where “the business provided no protection whatever from encroaching vehicles” such as no curb or other barrier; (2) where the defendant had knowledge of prior similar incidents; and (3) “where the building design required customers to await service by standing adjacent to a parking lot or driveway” such that if a car jumped the curb there was a high likelihood that a pedestrian would be present. (Id. at pp. 993-995 ([italics in original].) In Jefferson, the court did not find any of these exceptions applicable, and affirmed summary judgment for the defendant storeowner based on a lack of foreseeability. The court also stated the law would impose a heavy burden on property owners if it required them to erect impenetrable walls to secure people on their property against all runaway vehicles. (Id. at p. 996.) It stated “[t]he law does not impose such a burden.” (Ibid.)

Alliance’s position is once again that under the framework outlined in Jefferson Calderon’s death was not foreseeable because none of the three exceptions applied. This is the position the Court adopted in the previous ruling. In opposition, Plaintiffs dispute that Jefferson should be treated as creating any sort of test for assessing foreseeability—and thus duty—in this case. Moreover, Plaintiffs argue Jefferson is factually distinguishable.

Plaintiffs again present two cases that they claim support foreseeability on these facts, and are more analogous than Jefferson: Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49 (Bigbee) and Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294 (Robinson).

In Bigbee, a car veered off a roadway and struck a telephone booth “in a parking lot 15 feet away from the side of a major thoroughfare and near a driveway.” (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58.) A person inside the phone booth was injured, and sued the telephone company responsible for the design, location, and maintenance of the booth. (Id. at p. 53.) Evidence introduced by the plaintiff established a telephone booth in the same location had been struck by a car before, but that car came from the adjacent parking lot, not the roadway. (Id. at pp. 54-55.) The telephone company argued that a car driving off the road and crashing into a telephone booth was not foreseeable. (Id. at p. 54.) The Supreme Court of California disagreed, holding there was a triable issue of fact whether the injury was foreseeable. The court framed the issue in terms of the general harm, “what is required to be foreseeable is the general character of the event or harm – e.g., being struck by a car while standing in a phone booth – not its precise nature or manner of occurrence.” (Id. at pp. 57-58.)

In Robinson, a theme park maintained a large parking lot and an adjoining picnic area. (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1297.) In the parking lot there was a roadway with a speed limit of 25 mph directing traffic towards the picnic area, and specifically towards a picnic table. (Ibid.) The roadway ended in a T intersection, meaning vehicles had to make a 90 degree left turn to continue on the roadway and avoid entering the picnic area. (Ibid.) No curb or any other type of barrier prevented vehicles from continuing straight through the T intersection and striking persons sitting at the picnic table. (Ibid.) The court noted that at the maximum legal speed a vehicle could travel from the parking area, across the grass, and impact the picnic table in less than two seconds. (Id. at p. 1298.) A vehicle failed to turn at the intersection, continued straight into the picnic area, and caused injury to a person sitting at the picnic table. (Ibid.) The theme park argued, among other points, that there were no prior similar incidents, so the injury was not foreseeable. (Ibid.) The court found the injury was foreseeable despite the lack of prior similar incidents based in part upon the complete lack of protection from cars, and the fact customers were invited to “assume fixed position at the picnic table in the direct line of traffic.” (Id. at p. 1303.)

With these cases in mind, the Court moves on to address Plaintiff’s arguments against applying Jefferson.

Plaintiffs repeat their argument that a driver losing control of his or her vehicle and hitting someone or something on the side of the road is generally foreseeable. Plaintiffs omit the citation to Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764 (Cabral) which the Court distinguished in the previous opinion on factual grounds. Instead, Plaintiffs now rely on Bigbee.

This case is factually distinct from Bigbee. There, part of the court’s foreseeability analysis was that a car had hit a phone booth on that exact spot before. (Bigbee, supra, 34 Cal.3d at pp. 54-55.) Thus, the defendant could obviously foresee that a car could hit a phone booth at that location again. In light of that fact, Bigbee simply cannot be read to stand for the proposition that it is foreseeable—for purposes of duty—that a car might anything near a roadway at any time. Here, there is no allegation of prior incidents involving a car striking the credit union building or someone near it.

In addition, Plaintiffs assert this case is more factually similar to Bigbee in that the entrance to the credit union here is like the telephone booth in Bigbee. This argument is without merit in that Bigbee is actually factually distinguishable in several respects. First, there is no allegation that Calderon was directed to remain in the entrance similar to using a telephone booth. Second, the telephone booth in Bigbee was defective in that it was difficult to enter and exit. (Bigbee, supra, 34 Cal.3d at p. 58.) Thus, a patron could be trapped in it and unable to exit if a vehicle approached. (Ibid.) There are no similar allegations here. Most importantly, as stated above, in Bigbee there had been a prior incident where a car struck the telephone booth, placing the defendant on notice. (Id. at pp. 54-55.)

Next, Plaintiffs again argue this case is factually distinct from Jefferson because it involved a car parking in a parking space, and this case involves a busy street. Plaintiffs assert that a parking vehicle will be slower than a vehicle on a roadway, and will be preparing to stop. In contrast, a vehicle on a roadway will be moving at high speed.

Insomuch as Plaintiffs imply it is more foreseeable a vehicle would cause injury to a person while it was traveling on a busy road than while parking perpendicular to a sidewalk, or that these two sets of facts require a different analysis, they provide no authority to support their point. Moreover, in Bigbee the court rejected the defendants’ attempts to draw a distinction between cars in a parking lot and those coming from a nearby roadway. (See Bigbee, supra, 34 Cal.3d at pp. 57-58.) Thus, this argument is not well-taken.

In addition, Plaintiffs argue that the world has changed since Jefferson, as shown by new allegations that the legislature has incentivized insurance companies to install barriers to prevent this kind of accident. Insurance Code section 11895 permits insurers to provide or offer discounts on property insurance to customers who install vehicle safety barriers. (Ins. Code, § 11895.) Plaintiffs draw on the legislative history of section 11895 for statistics on how common vehicle-in-to-building crashes are.

This statute and legislative history is not persuasive. There is a wide gap between a bill authorizing insurers “to consider the installation of vehicle barriers as a safety measure that would authorize the insurer to provide or offer a discount on the property owner’s insurance” (TAC, ¶ 16) and a determination that the risk of a particular accident is foreseeable. Presuming the general nation-wide statistics cited are true, these new allegations are too remote to show foreseeability in this particular case. Nor would they invalidate existing cases such as Jefferson.

Plaintiffs also vaguely critique Jefferson and argue for a different analysis. At one point Plaintiffs’ assert “the relevant inquiry is outlined above” (Opp., p. 11:14) but the prior paragraphs do not outline any test. Elsewhere they criticize Jefferson for not engaging in a Rowland analysis. Insomuch as Plaintiffs’ argue Rowland supplies the relevant test, they do not go through the factors listed in Rowland or explain how a that analysis would reach a different result. The only case Plaintiffs cite which is primarily based on Rowland is Cabral. (Cabral, supra, 51 Cal.4th at p. 768.)

In an abundance of caution, the Court addresses Rowland as the Supreme Court did in Cabral. “In the Rowland decision, [the] court identified several considerations … ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citations.] ” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.)

The Court notes that Jefferson includes reasoning very similar to some of the Rowland factors. Jefferson included in its analysis the foreseeability of a collision, the involvement of a third party making the harm less foreseeable, the consequences to the community of imposing liability, and the burden requiring impenetrable barriers would place on roadside landlords. (Compare Jefferson, supra, 28 Cal.App.4th at pp. 994-996 with Cabral, supra, 51 Cal.4th at p. 771.)

Moreover, engaging in the Rowland analysis of foreseeability as applied in Cabral would not assist Plaintiffs. There, foreseeability is determined based on three related factors: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, [and] the closeness of the connection between the defendant’s conduct and the injury suffered….” (Cabral, supra, 51 Cal.4th at p. 774 [citing Rowland].)

The closeness of the connection between the defendant’s conduct and the injury suffered is interrelated with foreseeability. (Cabral, supra, 51 Cal.4th, at p. 779.) “Generally speaking, where the injury suffered is connected only distantly and indirectly to the defendant’s negligent act, the risk of that type of injury from the category of negligent conduct at issue is likely to be deemed unforeseeable. Conversely, a closely connected type of injury is likely to be deemed foreseeable.” (Ibid.) Thus, where a third party actually harmed the plaintiff, and the defendant’s negligence was merely placing the plaintiff in a position where it was acted upon by that third party, the event was likely unforeseeable. (See Id., at p. 780.)

Here, the connection between the injury and Alliance is minimal. Alliance, at most, placed Calderon where the negligence of another party might harm him. Moreover, there are no allegations of prior similar incidents that would have warned Alliance of this risk. Plaintiffs in this case suffered injury, but this is the only factor in favor of foreseeability. Thus, under a Rowland analysis the foreseeability factors weigh in favor of creating such an exception. Therefore, it is not clear how Plaintiffs’ preferred analysis would alter the result supported by Jefferson.

Turning to the second half of the Rowland analysis, “[the Court] ask[s] next whether the public policy factors identified in Rowland—‘the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved[.]’” (Cabral, supra, 51 Cal.4th, at p. 779.)

Here, the consequences to the community and burden placed on the defendant if every property near a busy street was required to protect people entering and exiting its property from runaway cars would be huge. The allegations contain a reference to one law regarding insurance, but do not really address the availability, cost, and prevalence of insurance for this risk. Nor do the allegations show any moral blameworthiness on the part of Alliance. The policy of preventing future harm would support imposing a duty on Alliance, but it stands alone in this respect.

In sum, balancing the favors listed in Rowland the Court would reach the same result as if it applied Jefferson. There is only a minimal connection between the harm suffered and Alliance. This combined with the lack of prior incidents makes the accident insufficiently likely to be foreseeable. Even if, hypothetically, the accident was foreseeable, the public policy argument in Jefferson fits within the framework of Rowland, and strongly cautions against imposing a duty here.

Having dispensed with Plaintiffs’ arguments against Jefferson, the Court proceeds to apply its three exceptions to the present case. Alliance argues that none of these three exceptions applies based on the allegations in the TAC. Therefore the TAC suffers the same deficiencies as the SAC.

With respect to the first exception—where the premises owner provided no protection from vehicles—Alliance quotes the Court’s prior ruling, which interpreted the first exception as applying only where there was no protection whatsoever. The Court relied on Jefferson in its prior ruling. In Jefferson, the court describes this exception as “no protection whatsoever[,]” and cites cases where there was not even a curb between the vehicle and the victim. (See Jefferson supra 128 Cal. App. 4th at p. 994 [italics in original].) The TAC, like the SAC before it, includes an allegation there was a curb that the vehicle had to jump over to strike Calderon. Therefore, this first exception does not apply.

As to second exception—whether the Alliance had knowledge of prior incidents—the TAC includes new allegations. Plaintiffs now allege “there were thirteen other vehicle collisions in and around the intersection of Curtner Avenue and Little Orchard Street and at or near the SUBJECT PROPERTY” since June 2015. (TAC, ¶ 20.) There were allegedly still more vehicle collisions in the same area prior to June 2015. Based on the many collisions in the area and the proximity of high-speed traffic, it was allegedly foreseeable some vehicle might cause injury to people near the entrance.

Alliance argues these new allegations are overly vague, and are not factually similar enough to make the unfortunate death of Calderon foreseeable. In support, Alliance cites Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403. There, a person sued a hotel management company and a bathtub manufacturer for negligence and other causes of action after he slipped in the bathtub of a hotel room. (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 410 (Howard).) The Court of Appeal considered if there was a triable issue of fact whether the plaintiff’s slip and fall was foreseeable in light of prior incidents. (Id. at p. 434.) It ruled the prior incidents did not create a triable issue of fact as to duty because the limited evidence did not show whether incidents were sufficiently similar. (Ibid.) Pertinent facts such as details regarding the condition of each bathtub and the medical condition of each injured person prior to the fall were not included in the evidence. (Ibid.) Without such details the court could not conclude the prior incidents should have put the defendants on notice. (Ibid.)

While on different facts, Howard supports the general point that in order for prior incidents to make a later incident foreseeable, and thereby create a duty, the prior incidents must be substantially similar to the later one. (See Howard, supra, 203 Cal.App.4th at p. 434.)

In opposition, Plaintiffs counters that under Bigbee the issue is whether, in light of these many collisions, a reasonably thoughtful person would have provided more protection.

Plaintiff does not present, and research does not reveal, a case discussing in any depth the scope of similar prior incidents involving curb jumping. The few cases that reference the issue seem to limit similar incident to very similar facts. (See Bigbee, supra, 34 Cal.3d at pp. 54-55 [car hit phone booth in exact same location was sufficiently similar]; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1150 [mail truck that drove through school fence by accident was not similar enough to make subsequent car that was deliberately driven through same fence foreseeable].)

Plaintiff does not allege any of these many collisions were at all similar to the one at issue here. There are no allegations that any resulted in a vehicle leaving the roadway and striking anything near the roadway, or injuring anyone near the Alliance’s property. Without some allegation of similarity, these collisions cannot fit within the second exception and provide notice.

In addition, Alliance argues this case does not fit within the third exception because the allegations are distinguishable from cases where a business’s design made customers wait or que up near moving vehicles. According to Alliance, the pertinent cases deal with situations where the design of the property required people remain fixed—standing, queuing, or sitting—in the path of vehicles. Alliance contends there is no allegation Calderon was waiting in line to enter. Thus, there is no allegation he was required by the building’s design to remain in a zone of danger.

In fact, the cases involving the third exception do generally include an improvement to the property that encouraged people to await service or otherwise remain at a particular spot for some duration. (See Jefferson v. Qwik Korner Market, Inc., supra, 28 Cal.App.4th at p. 995 [listing three cases involving persons waiting for service adjacent to vehicles]; Robison, supra, 64 Cal.App.4th at p. 1303 [harm foreseeable where “the design of the parking lot and picnic area required customers to assume a fixed position at the picnic table in the direct line of traffic”]; Bigbee,.supra, 34 Cal.3d at p. 51 [court cannot conclude as a matter of law harm was unforeseeable where telephone booth near roadway was hit by vehicle].)

Plaintiffs contend that the duration a person is in a particular location is irrelevant to the third exception. They reason anyone entering or leaving had to use the entrance, which was located dangerously close to a roadway. They allege that anyone using the entrance is “invited and corralled to use, stay or maintain at a fixed location with their backs to high speed traffic when using said entrance.” (TAC, ¶ 19.)

Alliance allegedly encouraged people to use the entrance at issue. Yet the necessity of using a particular entrance does not entail a requirement to remain at it or near it for any length of time. In this respect an entrance is not like a service window, picnic table, or telephone booth. It is not predictable someone will remain at an entrance for any length of time. Indeed the fundamental nature of an entrance or exit is not to encourage anyone to be remain but to pass through it.

Accordingly, the demurrer to the second and third causes of action is SUSTAINED.

B. The Fifth Cause of Action for Wrongful Death and Sixth Cause of Action for Survival Damages

Next, Alliance demurs from Plaintiffs’ fifth and sixth causes of action on the basis that they “…are entirely dependent upon the success of their claims for general negligence and premises liability.” (P&As ISO Dem., p. 9:27-28.) This is identical to the argument presented against the prior complaint with respect to the survival cause of action. Plaintiffs do not address the fifth or sixth causes of action in the opposition.

In general, “a cause of action for or against a person is not lost by reason of the person’s death, but survives…” (Code Civ. Proc., § 377.20.) The right to prosecute a cause of action passes from the decedent to the decedent’s successor in interest. (Code Civ. Proc., § 377.30.) Here, Plaintiffs’ survival cause of action against Alliance is dependent upon Calderon’s rights. Calderon’s successor in interest, Maria Guadalupe Jeronimo, can only maintain a cause of action if Alliance committed some act or omission that gave Calderon a cause of action against it.

As to wrongful death, the elements are “a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of [another] person.’ (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 390; accord. Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.)

The second and third causes of action for negligence and premises liability are the only other causes of action alleged against Alliance. The Court has ruled they do not state sufficient facts. Absent some other alleged cause of action that Calderon could have brought against Alliance, Plaintiffs cannot allege a survival action on his behalf against Alliance. Likewise, without an underlying tort there is no wrongful death action. Thus, while Alliance’s argument is minimal, it is meritorious.

Accordingly, the demurrer to the fifth and sixth causes of action is SUSTAINED.

C. Leave to Amend

In opposition, Plaintiffs request leave to amend based on new information that bollards were legally required at the credit union.

“ ‘A trial court abuses its discretion in sustaining a demurrer without leave to amend if there is a reasonable possibility a defect in the complaint can be cured by amendment or if the pleading can be liberally construed to state a cause of action.’ [Citation.] However, the burden is on the plaintiff to demonstrate how he can amend his complaint and how the proposed amendment will change the legal effect of the pleading. [Citation.]” (Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212, 1217.) “To satisfy this burden, ‘ “a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading’ ” ’ by clearly stating not only the legal basis for the amendment, but also the factual allegations to sufficiently state a cause of action. [Citation.]” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 618.)

Here, Plaintiffs present a single argument as to why they should be granted leave to amend. Plaintiffs state “[a]s of the filing of this opposition, Plaintiffs have obtained new information that indicates that bollards were actually required by code, and the failure to install such bollards boost Plaintiffs’ negligence theories and underlines the Defendant’s arguments on duty.” (Opp., p. 13:8-10.) This is precisely the argument—word for word—that Plaintiffs advanced in their opposition to the demurrer to the Second Amended Complaint (“SAC”). (Plaintiffs’ Opposition to Defendant Alliance Credit Union’s Demurrer to the SAC, p. 10:9-13.)

Plaintiffs have had ample opportunity to amend their pleadings and present arguments based on this supposed information. Plaintiffs had approximately three weeks put whatever new information they referenced in their prior opposition into the TAC. They failed to add any such allegations. Moreover, the instant opposition was filed several months later. Plaintiffs do not present any argument therein regarding a code that requires bollards. Nor do they request judicial notice of any matter related to that topic. In sum, Plaintiffs failed to support that basis for leave to amend when given the opportunity. Not only that, but Plaintiffs claim “as of the filing of this opposition” they “have obtained new information” strains credulity. (Opp., p. 13:8-10.) Plaintiffs have the burden of showing how they can amend the pleading, and fail to do so here.

Accordingly, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND, as to the second, third, fifth, and sixth causes of action.