ON July 8, 2014, the Hon. Brian C. Yep, presiding Judge of Department A-10 of the Lancaster Superior Court, ruled that premises liability in Plaintiff’s second amended complaint is included in the general negligence cause of action and sustained the demurrer thereon of the defendant-licensee of a residential facility for elderly/dependent adult.
The Author represents the defendant facility-licensee, whose identity and that of the plaintiff-former resident are withheld to protect their privacy and maintain confidentiality.
Demurrers to premises liability
Indeed, the plaintiff sued the defendant facility for dependent adult abuse, negligence, premises liability, and fraud (misrepresentation) as causes of action in his first amended complaint.
The Author filed the defendant facility’s demurrer to the fist amended complaint, which was sustained by Judge Brian C. Yep, but allowed the plaintiff to amend his complaint.
The plaintiff, through his counsel, a leading law firm suing residential and nursing facilities for development of decubitus ulcer (pressure sore) in their residents/ patients, subsequently filed his second amended complaint, alleging more allegations to the premises liability cause of action.
The Author again filed demurrer to the second amended complaint on the premises liability cause of action: for not stating sufficient facts to constitute a cause of action under CA Code of Civil Procedure Section 430.10(e), for being included in the general negligence cause of action, and for being uncertain, under CA Code of Civil Procedure Section 430.10(f).
Grounds for second demurrer on premises liability
The leading California case on premises liability is Rowland v. Christian (1968) 69 Cal. 2d 108, which ruled that premises liability is a form of negligence and that the owner or occupier of land and premises can be liable for dangerous conditions on the premises, whether natural or artificial. See Restatement (Second) of Torts, § 422.
The demurrer filed by the Author basically argued that the first amended complaint and the subsequent second amended complaint failed to allege specifically the “dangerous conditions on the premises,” other than citing regulations on safety, good repair, and healthful environment.
The identification of a safety hazard on the premises would enable the demurring defendant facility-licensee to properly answer the second amended complaint and possibly bring in a third party responsible thereof.
But the alleged failure to prevent the development of a preventable stage IV pressure ulcer from a diabetic resident, alleged in the second amended complaint, can hardly be categorized as “negligent use or maintenance of the facility property.”
Ruling of Judge Brian C. Yep
In sustaining defendant faculty’s demurrer to the premises liability cause of action, the Ho. Brain C. Yep held that he ordinarily would allow premises liability as an alternative cause of action to the negligence cause of action, but that he does not see any dangerous condition on the premises, natural or artificial.
So, he sustained defendant facility’s demurrer thereon, without leave to amend the second amended complaint; and ordered the defendant facility to file its answer to the second amended complaint by July 22, 2014.
He also ordered a mandatory settlement conference and set the jury trial to start on January 23, 2015.
* * *
The Author, Roman P. Mosqueda, aside from a VA-Benefits Certified Attorney, has done pro-bono work for Filipino World War II veterans. He is the Chairperson of the Board of Advisors of Asian Pacific Centers for Treatment and Counseling, the largest fee-for-service, private agency for mentally-ill in the United States, based in Los Angeles County. Send comments, inquiries to [email protected], or call (213) 252-9481 for free consultation appointment. Visit his website at www.mosquedalaw.com and EzineArticle.com to read his other articles.
