Schmidt, et al. v. Dsouza, et al.

Case No.: 25STLC04208 Matter: Demurrer Moving Party: Defendant Dax Dsouza Responding Party: Plaintiffs Jacob Schmidt, Jr. and Grace Schmidt Notice: OK Ruling: The Demurrer is overruled. Moving party to give notice. The Court encourages all parties to appear remotely via LA CourtConnect. If submitting on the Court's tentative ruling, please follow the instructions provided above.

On June 6, 2025, Plaintiffs Jacob Schmidt, Jr. and Grace Schmidt filed the operative First Amended Complaint ("FAC") for (1) strict liability for removal of lateral support and (2) negligence.

Defendant Dax Dsouza now demurs to the entirety of the FAC because "Plaintiff alleges Defendant 'removed dirt... causing the top layer of the slope to slide...' First Amended Complaint, Par[a]graph 9. However, this allegation is contradicted by Plaintiff's Exhibit 1 stating, 'a shallow surficial failure occurred as a result of the heavy rains during the winter months of 2022/2023.' Plaintiffs' complaint cannot stand where the Plaintiffs attached exhibit 1 contradicts Plaintiffs' allegation."

When considering demurrers, courts read the allegations liberally and in context, and "treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

"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. 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 v. Mirda ¿(2007) 147 Cal.App.4th 740, 747.)

It is error "to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital Dist. ¿(1992) 2 Cal.4th 962, 967.)

Exhibit 1 does not state that winter rain was the sole or exclusive cause of the slope failure. Rather, Exhibit 1 explicitly notes that the soil slump occurred "above the existing vertical bedrock cut." This observation is entirely consistent with Plaintiffs' allegation that Defendant cut into the slope and removed lateral support prior to the slide.

Under California law, a plaintiff is not required to show that the defendant's conduct was the sole cause of injury; it is sufficient to plead that the defendant's act was a concurrent cause or substantial factor in bringing about the harm (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969). Pleading that Defendant's excavation removed support and that subsequent heavy winter rainfall precipitated the slide describes a classic concurrent causation sequence.

Whether rainfall alone would have caused the slide absent Defendant's alleged excavation, or whether Defendant created or enlarged the bedrock cut, are factual disputes regarding causation that cannot be resolved at the pleading stage. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352-353).

Because Exhibit 1 and Paragraph 9 of the FAC can be reasonably harmonized, the exhibit does not contradict the pleading so as to render it demurrable. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-606).

Plaintiffs have sufficiently stated facts constituting causes of action for violation of Civil Code Sec. 832 and common law negligence. Thus, the Demurrer is overruled. An answer is to be filed within 10 days. Moving party to give notice.

Case Number: 26STCV07943 Hearing Date: September 11, 2026 Dept: 310 Tentative Ruling Judge Kevin C. Brazile Department 310 Hearing Date: September 11, 2026