On 03/27/2017 PATRICK GABB filed a Personal Injury - Other Personal Injury lawsuit against DMC MANAGEMENT COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, MARK A. BORENSTEIN, KRISTIN S. ESCALANTE and SERENA R. MURILLO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GEORGINA T. RIZK
MARK A. BORENSTEIN
KRISTIN S. ESCALANTE
SERENA R. MURILLO
DMC MANAGEMENT COMPANY
F FRAME COMPANY
LARRABURE FRAMING INC. (DOE 1)
LARRABURE FRAMING INC. (DOE 2)
BLF INC. (DOE 2)
LARRABURE FRAMING INC. DOE 2
BLF INC. DOE 2
LARRABURE FRAMING INC. DOE 1
CALIFORNIA TRUSFRAME LLC DOE 3
BLF INC. DOE 2 DBA LARRABURE FRAMING
ABER FENCE AND SUPPLY COMPANY INC.
BLF INC. DOE 2 DBA LARRABURE FRAMING INC. A CALIFORNIA CORPORATION
ABER FENCE AND SUPPLY COMPANY INC. [DOE 4]
RAVEN CONSTRUCTION INC. DBA AS DMC RAVEN CONSTRUCTION INC. DBA
BLF INC. DOE 2 DBA LARRABURE FRAMING
BLF INC. DOE 2 DBA LARRABURE FRAMING INC. A CALIFORNIA CORPORATION
ROES 1 THROUGH 50
LAW OFFICES OF JOHN H. MITCHELL
MITCHELL JOHN HODGSON
MITCHELL JOHN HODGSON ESQ.
LARIN MICHAEL J. ESQ.
LARIN MICHAEL JAY
STEFFY JUDITH J
LOUREIRO KARL ROBERT ESQ.
TAYLOR KENNETH ORVILLE III ESQ.
LARIN MICHAEL JAY ESQ.
PETERSON RICK L.
3/27/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -
3/17/2021: Request for Dismissal
2/3/2021: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
2/4/2021: Reply - REPLY REPLY IN SUPPORT OF DEFENDANT CALIFORNIA TRUSFRAME, LLCS DEMURRER TO PLAINTIFFS COMPLAINT; DECLARATION OF KENNETH O. TAYLOR III IN SUPPORT THEREOF
2/9/2021: Minute Order - MINUTE ORDER (COURT ORDER RE: CONTINUANCE OF THE FEBRUARY 11, 2021 HEARING ...)
2/9/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: CONTINUANCE OF THE FEBRUARY 11, 2021 HEARING ...) OF 02/09/2021
5/6/2020: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
5/23/2019: Notice of Entry of Dismissal and Proof of Service
5/15/2019: Request for Dismissal
2/11/2019: Ex Parte Application - JOINT EX PARTE APPLICATION BY PLAINTIFF AND DEFENDANT FOR AN ORDER CONTINUING THE TRIAL DATE PURSUANT TO STIPULATION, OR IN THE ALTERNATIVE, FOR AN ORDER SHORTENING TIME FOR SER
1/2/2019: Amendment to Complaint (Fictitious/Incorrect Name)
9/10/2018: Notice - Notice of Errata
9/11/2018: DEFENDANT, BLF, INC. D/B/A LARRABURE FRAMING'S ANSWER TO COMPLAINT OF PLAINTIFF, PATRICK GABB
9/5/2018: DEFENDANT, LARRABURE FRAMING, INC.'S ANSWER TO COMPLAINT OF PLAINTIFF, PATRICK GABB
9/6/2018: Amendment to Complaint (Fictitious/Incorrect Name) -
7/16/2018: Proof of Service of Summons and Complaint -
Hearing08/02/2021 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Quash Service of SummonsRead MoreRead Less
Hearing06/23/2021 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing06/11/2021 at 10:00 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketMotion to Quash Service of Summons (TO QUASH SERVICE OF SUMMONS UPON RAVEN CONSTRUCTION, INC. (ERRONEOUSLY NAMED AND SERVED AS RAVEN CONSTRUCTION INC., WHICH DO BUSINESS IN CALIFORNIA AS DMC RAVEN CONSTRUCTION) FOR UNTIMELY SERVICE OF PROCESS:); Filed by Raven Construction, Inc. dba as DMC Raven Construction, Inc. (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by Patrick Gabb (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
DocketRequest for Dismissal; Filed by Patrick Gabb (Plaintiff)Read MoreRead Less
Docketat 10:00 AM in Department 29, Serena R. Murillo, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Docketat 1:30 PM in Department 29, Serena R. Murillo, Presiding; Hearing on Demurrer - without Motion to Strike (- Doe Defendant 3 - California Trusframe, LLC's Demurrer to Plaintiff's Complaint (CCP Section 430.10(e)-(f))) - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Docketat 3:30 PM in Department 29, Serena R. Murillo, Presiding; Hearing on Demurrer - without Motion to Strike (- Doe Defendant 3 - California Trusframe, LLC's Demurrer to Plaintiff's Complaint (CCP Section 430.10(e)-(f))) - Not Held - Continued - Court's MotionRead MoreRead Less
DocketAnswer; Filed by LARRABURE FRAMING, INC. (DOE 1) (Defendant)Read MoreRead Less
DocketAmendment to Complaint (Fictitious Name)Read MoreRead Less
DocketAmendment to Complaint; Filed by Patrick Gabb (Plaintiff)Read MoreRead Less
DocketRequest for Entry of Default / Judgment; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketREQUEST FOR ENTRY OF DEFAULTRead MoreRead Less
DocketProof-Service/Summons; Filed by Patrick Gabb (Plaintiff)Read MoreRead Less
DocketProof of Service of Summons and ComplaintRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketComplaint; Filed by Patrick Gabb (Plaintiff)Read MoreRead Less
Case Number: BC655368 Hearing Date: February 25, 2021 Dept: 29
Patrick Gabb v. DMC Management Co., et al.
Demurrer filed by Defendant California TrusFrame, LLC
SUSTAIN the demurrer with leave to amend within 20 days.
Meet and Confer
Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading sought to be stricken or demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41.) The Court finds that Demurring Defendants have filed code-compliant meet and confer declarations. (Taylor Decl., ¶¶ 4-6; CCP § 430.41(a)(3)(B).)
Defendant can demur within the same period of time it has to answer the complaint, i.e., 30 days after service, unless extended by stipulation or court order. (CCP § 430.40(a).) However, an untimely demurrer may be considered by the court in its discretion. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)
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 Dept. of Water and 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 Court (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.)
Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)
A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (CCP § 430.10(e).) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)
A demurrer may also be sustained if a complaint is “uncertain.” (CCP § 430.10(f).) Uncertainty exists where a complaint’s factual allegations are so confusing that they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
As a preliminary matter, the parties dispute whether the demurrer is filed timely. Both parties agree that Plaintiff granted Demurring Defendant a 30-day extension to file a responsive pleading, which expired on December 20, 2020. (Taylor Reply Decl., ¶ 3.; Mitchell Decl., ¶ 6.) With respect to the timeliness of the demurrer, Demurring Defendant argues that the time to file a responsive pleading, i.e., demurrer, is extended or tolled by initiating a meet and confer between the parties. (Reply, 2:11-26.) Demurring Defendant does not provide any authority to support this proposition. The Court is not convinced by the argument.
Alternatively, Plaintiff contends that Demurring Defendant was in default by 30 days when it filed a demurrer to the complaint. Plaintiff asserts that his substantial rights have been prejudiced and that he has a right to take a default. Plaintiff does not explain how or what, if any, substantial rights have been prejudiced. Neither is the Court convinced by Plaintiff’s argument.
Even assuming Demurring Defendant failed to file timely responsive pleadings, here, the demurrer, within the extension granted by Plaintiff, the relevant rule specifically affords the Court discretion to consider the late demurrer. (See CCP § 430.40(a) [“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (emphasis added).] The Court still retains its discretionary authority to consider the demurrer even if it was filed 30 days past due. (Jackson, supra, at 750. [“The trial court may exercise this discretion so long as its action does ‘not affect the substantial rights of the parties.’” (McAllister v. County of Monterey(2007) 146 Cal.App.4th 253, 281-82.)].) Accordingly, the Court will consider the “late” filing and issue a ruling on its merits.
2. General Demurrer to Both Causes of Action
The elements of a negligence cause of action are the existence of a duty of care, breach of that duty, and proximate cause resulting in injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-18.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) (26 Cal.4th 1200, 1205.) To establish that a defendant owed a duty to a plaintiff in a premises liability claim, the plaintiff must allege facts to show that the defendant owned, leased, occupied, or controlled the subject property. (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 832.)
Here, following is the extent of what the complaint alleges:
At all times herein mentioned, defendants, and each of them, were the agent, employee or principal of the remaining defendants, and in doing the acts herein alleged, acted within such capacity.
Defendants and each of them negligently failed to keep the work area free of objects on the floor at the bottom of the stairwell. Defendants and each of them had a duty to keep the area free from objects on the floor at the bottom of stairwells.
(Compl. p. 4.)
The complaint lacks any allegation that Demurring Defendant owned, leased, occupied, or controlled the subject property. Plaintiff argues that Demurring Defendant’s statements in the moving papers are sufficient to support the cause of action. However, this is not the standard on which the Court relies. In analyzing a demurrer to the complaint, the Court looks to defects on the face of the complaint, not any other extrinsic matters. (SKF Farms, supra, at 905.)
Since Plaintiff fails to allege facts sufficient to show that Demurring Defendant owed a duty of care to Plaintiff in the complaint, the demurrer must be sustained in its entirety.
The Court will not examine whether the complaint is uncertain pursuant to CCP § 430.10(f) because the demurrer must be sustained based solely on Plaintiff’s failure to state facts sufficient to constitute a cause of action.
Defendant California TrusFrame, LLC’s demurrer is SUSTAINED in its entirety with leave to amend within 20 days.
Moving party is ordered to give notice.
Case Number: BC655368 Hearing Date: February 11, 2021 Dept: 29
Gabb vs. DMC Management Co. et. al.
Court Order Re: Continuance of the February 11, 2021 Hearing to February 25, 2021;
On the Court's own motion, the Hearing Doe Defendant 3 - California Trusframe, LLC's Demurrer to Plaintiff's Complaint (CCP Section 430.10(e)-(f)) scheduled for 02/11/2021 is CONTINUED to 02/25/2021 at 01:30 PM in Department 29 at Spring Street Courthouse.
Judicial Assistant is directed to give notice
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