Case Number: BC721898 Hearing Date: June 12, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT COLDWELL BANKER OLYMPIC’S DEMURRER TO THE COMPLAINT

I. INTRODUCTION

On September 14, 2018, Plaintiff Heather C. Stotts (“Plaintiff”) filed this action against Defendant Artt Ledesma, Renee Ledesma, and Coldwell Banker Olympic (“Defendant”) for premises liability arising out of a September 16, 2016 slip and fall. Defendant demurs to the complaint.

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.) 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.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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

Plaintiff alleges she was a lessee of Defendant. Defendant dug a trench in the backyard of the residence being leased by Plaintiff to provide additional drainage to the property. This created a dangerous condition in the backyard, as there were no barriers or safety measures undertaken to prevent anyone from slipping or falling into the trench. Plaintiff slipped and fell as a result of the dangerous condition and suffered injury requiring multiple surgeries. (Complaint, ¶ Prem.L-1.)

Meet and Confer Requirement

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).) On April 2, 2019, defense counsel sent a letter requesting a telephonic meet and confer. (Declaration of Terry H. Bell, ¶ 1.) On April 24, 2019, defense counsel conducted a telephonic meet and confer with Plaintiff’s counsel. (Bell Decl., ¶ 2.) Plaintiff’s counsel indicated he would amend the complaint and take appropriate corrective actions but to date, no amended complaint has been filed. (Bell Decl., ¶ 3.)

Premises Liability

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Defendant argues Plaintiff’s complaint is uncertain because it does not state the premises’ address and the fact that Plaintiff entered the yard at night with full knowledge of the alleged hazard. Defendant also argues Coldwell Banker Olympic is not a legal entity; rather, it is the fictitious business name of Impact Realty, Inc., the real party in interest. Defendant contends there are no allegations linking Coldwell Banker Olympic to any act that caused Plaintiff’s injuries. Plaintiff filed no opposition.

Plaintiff’s allegations are insufficient to the extent the Complaint does not state the address of the property at issue. Otherwise, Plaintiff has stated a negligence cause of action against Defendant. Plaintiff alleged she was Defendant’s lessee and that Defendant, along with Artt Ledesma, Renee Ledesma, owned, maintained, managed and operated the premises. As such, Defendant owed her a duty of care. Plaintiff alleged Defendant created a dangerous condition on the property – the trench. As a result, Plaintiff fell into the trench and sustained injuries.

The Court will not address Defendant’s arguments about Plaintiff’s comparative negligence, as these arguments are not properly considered in ruling on demurrer.

As to the argument that Coldwell Banker Olympic is not a legal entity, “a lawsuit could properly be brought against a [corporation] by suing and serving it under its fictitious business name.” (Pinkerton’s Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348; see also Billings v. Edwards (1979) 91 Cal.App.3d 826.) “[W]here a person or corporation elects to follow the statutory procedure of section 17900 et seq of the Business and Professions Code, it has held itself out to those with whom it does business as having adopted that name for all business purposes. Notice to it under that name is all that the law requires.” (Billings, supra, 91 Cal.App.3d at p. 831, fn. 1.) “Use of a fictitious business name does not create a separate legal entity . . . The business name is a fiction, and so too is any implication that the business is a legal entity separate from its owner.” (Pinkerton’s Inc., supra, 49 Cal.App.4th at p. 1348.)

Defendant requested judicial notice of documents filed with the California Secretary of State showing Coldwell Banker Olympic is a DBA of Impact Realty Inc. A lawsuit against Impact Realty Inc. may be properly filed using one of its fictitious business names. (Pinkerton’s Inc., supra, 49 Cal.App.4th at p. 1349 [“plaintiffs named and served [defendant] under its fictitious business name . . . an entirely acceptable procedure”].) However, “while a corporation may be sued by its fictitious business name, once its true name is discovered, all further proceedings should be in the corporate name.” (Ibid.)

The demurrer is SUSTAINED with 10 days’ leave to amend to file an amended complaint stating the address of the property at issue. The amended complaint should use Defendant’s corporate name of Impact Realty Inc.

Moving party to give notice.