Case Number: BC590186 Hearing Date: April 06, 2018 Dept: 47

Richard Nam v. Dr. Robbin USA, et al.

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant Dr. Robbin USA, Inc.

RESPONDING PARTY(S): Plaintiff Richard Nam

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that a fuel burner leaked gas which suddenly ignited and caused an explosion at Plaintiff’s dental school.

Defendants filed cross-complaints for indemnity.

Defendant Dr. Robbin USA, Inc. demurs to the first amended complaint.

TENTATIVE RULING:

Defendant Dr. Robbin USA, Inc.’s demurrer to the Complaint is SUSTAINED without leave to amend as to the first cause of action, unless Plaintiff can demonstrate a reasonable possibility of successful amendment.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of Sam Helmi reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Analysis

1. First Cause of Action (Negligence Against Landlord).

Although the 1AC does not expressly allege this, Defendant Dr. Robbin U.S.A claims to be the landlord alleged in the 1AC.

To prevail in an action for negligence, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff’s injuries. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145 [12 Cal. Rptr. 3d 615, 88 P.3d 517].)

The existence of a legal duty is a question of law for the court. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 [30 Cal. Rptr. 3d 145, 113 P.3d 1159].) “As this court has explained, ‘duty’ is not an immutable fact of nature ‘ “but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” ’ [Citations.] In California, the general rule is that all persons have a duty ‘ “to use ordinary care to prevent others being injured as the result of their conduct. …” ’ (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561] (citations omitted); Civ. Code, § 1714.)” (Ballard v. Uribe (1986) 41 Cal.3d 564, 572–573, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624].) Foreseeability of harm is a “ ‘crucial factor’ ” in determining the existence and scope of that duty. (Delgado, supra, 36 Cal.4th at p. 237.)

John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188-89 (bold emphasis added).

Plaintiff alleges that Defendant landlord knew that Plaintiff used medical equipment in running a vocational school for dental students on the leased premises and after the lease was signed, Plaintiff demanded that he be allowed to install gas burners for flames used by the school. 1AC, ¶¶ 22 – 24. However, Defendant landlord refused to allow such installation on the premises. ¶¶ 25, 26. Plaintiff used the secondary choice of individual alcohol gas burners instead of gas lines. ¶¶ 11, 27. On August 6, 2013, invisible gas flooded the area of a student, and a flame ignited the invisible gas, severely burning the student and causing property loss. ¶ 12. The school was forced to shut down and permanently close. Id.

Plaintiff is essentially alleging that Defendant landlord owed a duty to allow the installation of gas burner lines on the premises. However, the Court finds that it was not foreseeable that the failure to approve such installation would cause a gas leak that would result from individual alcohol gas burners. Plaintiff does not allege that Defendant landlord was told Plaintiff would be forced to utilize individual alcohol burners if gas burner lines were not installed, that Defendant landlord was told that individual alcohol gas burners presented a risk of igniting and causing an explosion, and that Defendant refused to allow the installation of gas burner lines in the face of such known information.

The first cause of action does not plead facts giving rise to a duty to approve the installation of gas burner lines owed to Plaintiff by the Defendant landlord.

The demurrer to the first cause of action is SUSTAINED without leave to amend. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. In this instance, however, Plaintiff must demonstrate this possibility at the hearing, otherwise no leave to amend will be given.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: April 6, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court