Case Name: Jeannine MacDonald v. Julie Wood, et al.
Case No.: 1-13-CV-244647
Date & Time: June 24, 2014 @ 9:00 a.m.
Dept: 21 for Dept. 5 (Hon. Overton)

Currently before the Court is the demurrer of defendant Julie Wood (“Defendant”) to the second amended complaint (“SAC”) of plaintiff Jeannine MacDonald (“Plaintiff”). (Code Civ. Proc., § 430.10, subd. (e).)

Defendant’s request for judicial notice is GRANTED in its entirety given that the documents at issue are court records relevant to the procedural history of this action. (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].) To the extent that the request is granted, however, the Court takes judicial notice only of the existence of these documents and the fact that they contain certain allegations, and not of the truth of statements contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1568 [a court may take judicial notice of the existence of documents in a court file and the fact that certain findings were made, but may not take judicial notice of the truth of factual findings].)

Defendant contends that Plaintiff fails to state a cause of action for negligence because she alleges no facts supporting the conclusion that Defendant owed her a duty in connection with the events that gave rise to her injuries. However, “a landowner is under a duty to refrain from causing injury … by actions which would constitute active negligence as distinguished from condition of the premises.” (Howard v. Howard (1960) 186 Cal.App.2d 622, 624; see also Herold v. P.H. Mathews Paint House (1919) 39 Cal.App. 489, 493 [“where the licensee is upon the premises of a defendant, and is injured by an overt act of negligence committed against him by the defendant … the licensor is responsible”].) “Active negligence is the negligent conduct of active operations.” (Howard v. Howard, supra, 186 Cal.App.2d at p. 624, quoting Simpson v. Richmond (1957) 154 Cal.App.2d 27, 30.)
Here, Plaintiff alleges that she was injured while helping Defendant move a closet door at an apartment building owned by Defendant.
(SAC, p. 4.) Moving property is an active operation in connection with which a landowner owes licensees a duty of care. (See Church v. Headrick & Brown (1950) 101 Cal.App.2d 396, 402, 408 [finding of negligence by landowner’s employee was supported where a non-employee was injured while helping to move a steel girder on the property; plaintiff’s injuries were due to an overt act of negligence]; see also Howard v. Howard, supra, 186 Cal.App.2d at p. 626 [upholding verdict against defendant homeowner who instructed guest to prepare coffee in his kitchen without warning her of grease on the floor; failure to warn “may be reasonably considered a part of [defendant’s] overt act of requesting [plaintiff] to prepare the coffee”]; Herold v. P.H. Mathews Paint House, supra, 39 Cal.App. at pp. 493-494 [court erred in finding no active negligence as a matter of law where guest at apartment building fell into elevator shaft after employee opened the gate without warning her that the elevator was on the floor above].) The facts alleged by Plaintiff thus give rise to a duty of care on the part of Defendant.

The demurrer is accordingly OVERRULED.