Motion to Compel and Demurrer (Judge Pauline Maxwell)

Ryan Kaufman vs Apeel Technology Inc et al

TENTATIVE RULING:???? The demurrer of defendants Los Carneros Opportunity, LP, and Daketta Los Carneros, LLC, to plaintiff?s third and fourth causes of action for products liability and negligence per se is overruled. Defendants shall file and serve their answer to the complaint on or before May 9, 2018.

BACKGROUND:

This is an action for work-related injuries sustained by plaintiff Ryan Kaufman while installing video cameras on the outside of a building located at 71 S. Los Carneros Road, Goleta, California. Plaintiff alleges that he suffered severe electrical burns due to a dangerous and defective condition at the premises consisting of hidden high voltage cables. Plaintiff?s complaint, filed on July 12, 2017, alleges causes of action for (1) premises liability, (2) general negligence, (3) products liability (strict liability, negligence, and breach of implied and express warranties), and (4) negligence per se. Defendants include Apeel Technology, Inc. dba Apeel Sciences, Inc. (erroneously sued as Apeel Services, Inc.), Southern California Edison, Allergan, Inc., Los Carneros Opportunity, LP, Daketta Los Carneros, LLC, Hurst Enterprises, Inc., Meridian Group Real Estate Management, Inc., Beyond Heating and Air, Inc., and Los Carneros Business Park, LP. On March 8, 2018, Travelers Property Casualty Company of America, the workers? compensation carrier for plaintiff?s employer, CV Enterprises, Inc., filed a notice of lien in the case for $623,436.61.

Defendant Los Carneros Opportunity, LP, the owner of the property where plaintiff was injured, and its general partner, defendant Daketta Los Carneros, LLC, now demur to plaintiff?s third cause of action for products liability and fourth cause of action for negligence per se for failure to state facts sufficient to constitute a cause of action and uncertainty. Plaintiff opposes the demurrer.

ANALYSIS:

The grounds for demurrer are set forth in?Code of Civil Procedure?Section 430.10, which provides, in relevant part:

?The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

?(e) The pleading does not state facts sufficient to constitute a cause of action.

?(f) The pleading is uncertain. As used in this subdivision, ?uncertain? includes ambiguous and unintelligible.?

The court?s task in ruling on a demurrer is to determine whether the complaint states a cause of action.?People ex rel. Lungren v. Superior Court?(1996) 14 Cal.4th 294, 300. The court assumes the truth of all allegations in the complaint that have been properly pleaded, but not contentions, deductions, or conclusions of fact or law.?Blank v. Kirwan?(1985) 39 Cal.3d 311, 318;?Porten v. University of San Francisco?(1976) 64 Cal.App.3d 825, 827. The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts in the complaint.?Reynolds v. Bement(2005) 36 Cal.4th 1075, 1083.

Defendants challenge plaintiff?s third cause of action for products liability, which alleges three counts: strict liability, negligence, and breach of warranty. Where a defective product causes injury to a consumer, the manufacturer or supplier of the product may be held strictly liable in tort.?Greenman v. Yuba Power Products, Inc.?(1963) 59 Cal.2d 57, 62. As the court stated in?Pike v. Frank G. Hough Company?(1970) 2 Cal.3d 465, 475, quoting Section 402A of the Restatement Second of Torts:

?One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer [or bystander], or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.?

The manufacturer or supplier of a defective product may also be held liable for negligence, where a duty of care was owed to the injured party, or breach of warranty, where the defective product was covered by an express or implied warranty and the defect causes harm. See,?Chavez v. Glock, Inc.?(2012) 207 Cal.App.4th 1283, 1304-1305 (negligence);?United States Roofing, Inc. v. Credit Alliance Corporation?(1991) 228 Cal.App.3d 1431, 1441 (breach of warranty). Before a defendant can be held liable for products liability, however, it must be shown that it manufactured or supplied goods or products for the use of others.?Silverhart v. Mount Zion Hospital?(1971) 20 Cal.App.3d 1022, 1026. ?Products liability is the name currently given to the area of the law involving the liability of those who supply goods or products . . . to purchasers, users, and bystanders for losses of various kinds resulting from so-called defects in those products.??Merrill v. Navegar, Inc.?(2001) 26 Cal.4th 465, 468.

Defendants contend that plaintiff?s products liability claim is defective because they are merely the owner, and general partner of the owner, of the building where plaintiff was injured. Plaintiff has also failed to allege the existence of any express or implied warranty in connection with the sale of any goods by defendants. Defendants, however, are attempting to plead and prove their case at the pleading stage, which is improper. A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the complaint that are judicially noticeable.?Donabedian v. Mercury Insurance Company?(2004) 116 Cal.App.4th 968, 994. This means that a court cannot consider facts asserted in a demurrer which, if true, would disclose a defect in the complaint.?Ion Equipment Corporation v. Nelson?(1980) 110 Cal.App.3d 868, 881. While it may be true that defendants did not manufacture or supply any products for use by consumers or others, and thus, cannot be held liable for products liability, plaintiff has alleged to the contrary. Specifically, plaintiff alleges:

? Defendants designed, manufactured, and/or built a defective electrical system at 71 S. Los Carneros Road in Goleta.

? Defendants knew that the product would be purchased and used without inspection for defects.

? The product was defective when it left the control of defendants.

? The product at the time of injury was being used in the manner intended by defendants and in a manner that was reasonably foreseeable by defendants.

? Plaintiff was a bystander to the use of the product.

? On June 1, 2017, plaintiff was injured by use of the product.

? Defendants owed a duty of care to plaintiff when they designed, manufactured, and/or built the defective electrical system.

? Defendants breached both express and implied warranties with respect to the product.

(Complaint, ?? Prod. L-1 through Prod. L-6.)

As noted above, in reviewing the sufficiency of a cause of action against a demurrer, the court assumes the truth of all facts properly pleaded.?Blank v. Kirwan, supra, 39 Cal.3d 311, 318. Here, plaintiff has alleged all of the elements of a claim for products liability, whether based on strict liability, negligence, or breach of warranty, and defendants? demurrer to the third cause of action will be overruled.

Plaintiff?s fourth cause of action is for negligence per se. Defendants demur to plaintiff?s fourth cause of action on the ground that negligence per se is not a separate cause of action. Rather, it is a doctrine that establishes a presumption of negligence from the violation of a statute enacted to protect a class of persons of which the plaintiff is a member. See,?Quiroz v. Seventh Avenue Center?(2006) 140 Cal.App.4th 1256, 1285; see also,?Casey v. Russell?(1982) 138 Cal.App.3d 379, 383 (under the doctrine of negligence per se, a duty of care may be prescribed by statute and a violation of the statute is presumed to be negligent). The doctrine of negligence per se is codified in?Evidence Code?Section 669, subdivision (a), which creates a presumption of negligence if the following four elements are established:

1. The defendant violated a statute, ordinance, or regulation of public policy;

2. The violation proximately caused injury to person or property;

3. The injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and

4. The person suffering the injury to person or property was one of the class of persons for whose protection the statue, ordinance, or regulation was adopted.

Thus, a cause of action for negligence may be proven in two ways. One way is for the plaintiff to show that the defendant should have reasonably foreseen that a particular act or omission could result in damage or injury to the plaintiff.?Alva v. Cook?(1975) 49 Cal.App.3d 899, 903. Another way is for the plaintiff to show that the defendant was ?negligent per se? because the defendant violated a statute applicable to the plaintiff and that violation caused injury or damage to the plaintiff.?Capolungo v. Bondi?(1986) 179 Cal.App.3d 346, 350. Here, plaintiff has asserted causes of action for both general negligence (second cause of action) and negligence per se (fourth cause of action). Defendants contend that the negligence per se cause of action cannot be maintained because it is not a separate cause of action, but simply another way of proving the elements of duty and breach in the negligence claim.

The court agrees that plaintiff?s negligence per se cause of action is encompassed within his negligence claim, subject of course to proof that defendants violated a statute, ordinance, or regulation specifically intended to prevent the kind of injury that occurred in this case. However, while negligence per se is technically not a separate cause of action, the court sees no difference between pleading it as a separate cause of action or as an additional count to the existing negligence claim. In the end, the allegations in the complaint will be the same. Defendants? demurrer to plaintiff?s fourth cause of action will therefore be overruled.