Case Number: BC706369 Hearing Date: November 28, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

BRENDA COX ;

Plaintiff,

v.

EDGEWATER TOWERS CONDOMINIUMS HOMEOWNERS’ ASSOCIATION , et al.;

Defendants.

Case No.: BC706369

Hearing Date: November 28, 2018

[TENTATIVE] order RE:

DEFENDANT’s Demurrer to & MOTION TO STRIKE complaint

PLAINTIFF’s motion to strike

MOVING PARTY: Defendant, Edgewater Towers Condominiums Homeowners’ Association

RESPONDING PARTY: Plaintiff, Brenda Cox

The court has considered the moving, opposition, reply and supplemental papers.

Background

Plaintiff Brenda Cox (“Plaintiff”) filed a complaint on May 16, 2018, alleging four causes of action for general negligence, res ipsa loquitur, premises liability, and products liability.

Plaintiff’s complaint arises from a slip and fall incident at Defendant Edgewater Towers Condominiums Homeowners’ Association’s (“Defendant”) premises. On December 18, 2017, Plaintiff’s toe was caught by the gap between an elevator and floor while she attempted to enter the elevator. (Compl. pp. 4-6.) She alleges that this constituted a dangerous condition of which Defendant had notice and that Defendant failed to maintain and manage the elevator properly. (Compl. pp. 4-6.) Plaintiff also asserts a products liability claim against co-defendants Specialized Elevator Corporation and Otis Elevator Company.

On July 3, 2018, Defendant filed a demurrer to the res ipsa loquitur cause of action and a motion to strike that cause of action. Plaintiff filed an opposition on July 10, 2018. Defendants filed a reply on July 25, 2018, and an amendment to the reply on July 27, 2018. Plaintiff filed a supplemental declaration in opposition on July 27, 2018.

On August 1, 2018, the Court continued the instant demurrer and motion to strike to October 1, 2018 because Defendant’s corporate status was suspended. On August 27, 2018, Plaintiff filed a motion to strike Defendant’s demurrer due to its suspended status. On October 1, 2018, the Court again continued the motions to allow Defendant to file proof of its reinstated status. On November 14, 2018, Defendant filed a supplemental declaration.

Defendant’s Demurrer to the Second Cause of Action

Defendant demurs to the second cause of action for general negligence – res ipsa loquitur. Defendant argues that res ipsa loquitur is a rebuttable presumption rather than a stand-alone cause of action. Defendant also argues that Plaintiff has not alleged that Defendant had exclusive control of the instrumentality that caused her injuries, which thus fails to establish the elements of res ipsa loquitur against Defendant.

Plaintiff opposes, concedes that res ipsa loquitur is an evidentiary doctrine, but argues that Plaintiff should still be allowed to plead the theory in the complaint. Plaintiff further contends that the Complaint alleges joint, exclusive control over the property. Plaintiff asserts that this is proper when raising res ipsa loquitur against multiple defendants.

Defendant reiterates its moving arguments and notes that Plaintiff is not entitled to plead res ipsa loquitur as its own stand-alone cause of action. Defendant argues that Plaintiff cannot succeed on a res ipsa loquitur cause of action against Edgewater based on the fact that two Defendants can have joint control over the injury-causing instrumentality because it is un-alleged.

Defendant’s Motion to Strike

Defendant also moves to strike the second cause of action. Defendant reiterates its arguments on demurrer as to the motion to strike. Plaintiff opposes and incorporates her arguments from the demurrer. On reply, Defendant argues that Plaintiff has conceded that res ipsa loquitur is an evidentiary doctrine rather than its own stand-alone cause of action. Further, Defendant contends that Plaintiff does not allege that Defendant and co-defendants Specialized Elevator Corporation had joint control of the property.

Plaintiff’s Motion to Strike Defendant’s Responsive Pleading

Plaintiff argues that a suspended corporation lacks the capacity to sue or defend itself in court. Plaintiff requests judicial notice of the fact that Defendant is in suspension.

LEGAL STANDARD

Meet and Confer Requirement

CCP section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (CCP § 430.41(a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (CCP § 430.41(a).) A similar meet and confer process and declaration is required for motions to strike. (See CCP § 435.5.)

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

DISCUSSION

Meet and Confer Requirements

Defense counsel’s declaration satisfies CCP sections 430.41(a)(3)(B) and 435.5(a)(3)(B)’s declaration requirements. (Marcott Decl. ¶¶ 3-4.)

Plaintiff counsel’s declaration satisfies CCP section 435.5(a)(3)(B)’s declaration requirement. (Lodmer Decl. ¶ 3-4.)

Request for Judicial Notice

Defendant requests judicial notice of the complaint and the letter filed for meet and confer purposes. Defendant’s request as to the complaint is granted. (Evid. Code § 452(d).) Defendant’s letter will be considered for meet and confer purposes only, and the court will not otherwise take judicial notice of the document.

Plaintiff requests judicial notice of the results of a business search of California’s Secretary of State records for Edgewater. (Plaintiff RJN, Ex. A.) The search displays Edgewater’s status as suspended as of 1/25/2018. Defendant does not object to Plaintiff’s request for judicial notice, and at the October 1, 2018 hearing, Defendant indicated that Defendant did not dispute its suspended status at that time. Plaintiff’s request for judicial notice is thus GRANTED. (Evid. Code § 452(c), (h).)

Plaintiff’s Motion to Strike

Plaintiff’s motion to strike is DENIED. Defendant has submitted proof of its reinstated status. (Supp. Azimi Decl., Ex. B.) Defendant is no longer suspended by the California Secretary of State and may properly defend against this action. (See Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361; see also Palm Valley Homeowners Ass’n, Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 560.)

Demurrer Analysis

Res ipsa loquitur is not a cause of action. Rather, it is a presumption affecting the burden of producing evidence. (Evid. Code §§ 646, 604.) The doctrine is applied to permit the jury to infer a defendant’s negligence from the fact of a defect under appropriate circumstances. (Romig v. Goodyear Tire & Rubber Co. (1969) 271 Cal.App.2d 420, 422.) It is based on a theory of “probability” where there is no direct evidence of defendant’s conduct, permitting a common-sense inference of negligence from the happening of the accident. (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75.) The applicability of the doctrine depends on whether it can be said that the accident was probably the result of negligence by someone, and defendant was probably the person who was responsible. (Ibid.; see CACI 417.)

As the Complaint asserts a cause of action for res ipsa loquitur, and no such cause of action exists, the demurrer must be SUSTAINED. Leave to amend will not be granted to allege a separate cause of action for res ipsa loquitur. That said, the complaint currently does not allege joint ownership or control of the defendants to establish the theory of res ipsa loquitur. (See Ybarra v. Spangard (1944) 25 Cal.2d 486, 492 [where all parties who exercised control over the item that caused the injury are sued together, res ipsa may be used, thus shifting the burden to defendants to explain how the injury came about]; see also Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1391-1392; Martinides v. Mayer (1989) 208 Cal.App.3d 1185, 1195.) Leave to amend will be granted to allow Plaintiff to allege res ipsa loquitur as a part of the underlying negligence claim in the first cause of action, on the basis of joint control.

Motion to Strike

Defendant’s motion to strike is moot per the ruling on the demurrer.

Conclusion

Plaintiff’s motion to strike Defendant’s demurrer and motion to strike is DENIED.

Defendant’s demurrer is SUSTAINED with leave to amend within 20 days. Leave to amend is limited to alleging res ipsa loquitur within the negligence cause of action.

Defendant’s motion to strike is MOOT per the ruling on demurrer.

Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: November 28, 2018 ___________________________

Elaine Lu

Judge of the Superior Court