Judge: Andrew E. Cooper, Case: 24CHCV01588, Date: 2024-10-10 Tentative Ruling

Case Number: 24CHCV01588    Hearing Date: October 10, 2024    Dept: F51

DEMURRER

Demurrer filed: 6/11/24

MOVING PARTY: Defendant Toque Nuevo Beauty, LLC (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Nadia Samir (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: Moving Defendant demurs against Plaintiff’s entire complaint.

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend. Moving Defendant’s request for judicial notice is granted.

BACKGROUND 

This is a premises liability action in which Plaintiff alleges that on 2/12/23, she was walking towards Moving Defendant’s business, located at 1111 San Fernando Road, San Fernando, California 91340, “and upon stepping onto the small step of the entrance, Mrs. Samir slipped and violently fell and hit her head on the metal frame of the entry door.” (Compl. pp. 4–5.) On 4/26/24, Plaintiff filed her complaint against Moving Defendant and the property owner, alleging the following causes of action: (1) General Negligence; and (2) Premises Liability.

On 6/11/24, Moving Defendant filed the instant demurrer. On 9/25/24, Plaintiff filed her opposition thereto. No reply has been filed to date.

ANALYSIS

Moving Defendant demurs to Plaintiff’s entire complaint on the basis that Plaintiff fails¿to allege facts sufficient to state either cause of action.

A.    Meet-and-Confer

Moving Defendant’s counsel declares that on 5/29/24, he met and conferred in writing with Plaintiff’s counsel regarding the issues raised in the instant demurrer, but the parties were unable to come to an informal resolution. (Decl. of Norman Gregory ¶¶ 3–4.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements under the Code of Civil Procedure section 430.41.

B.     Negligence

Plaintiff’s first cause of action alleges General Negligence against Defendants. To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, Moving Defendant argues that “Plaintiff failed completely and entirely to allege ultimate charging allegations or ultimate facts related to negligence.” (Dem. 3:23–24.) “There are no facts showing that any of the defendants acts or omissions to act negligently caused plaintiff’s injuries.” (Id. at 3:26–27.)

Plaintiff argues in reply that “as the owner and operator of a beauty salon open to the public, Defendant TOQUE NUEVO clearly owed a certain duty of care to its invitees and lawful entrants, including Plaintiff, to maintain its premises in a reasonably safe condition that is free of any potential hazards.” (Pl.’s Opp. 7:26–8:1.) Plaintiff further asserts that “the very occurrence of such an incident on a step at the entrance, where dozens of customers enter on a daily basis, suggests that Defendant TOQUE NUEVO failed to maintain its entryway in a reasonably safe condition to prevent foreseeable harm to visitors.” (Id. at 8:2–5.)

However, the Court finds that these conclusions are not alleged as facts in Plaintiff’s complaint. Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to constitute a cause of action for Negligence. Accordingly, the Court sustains the demurrer as to Plaintiff’s first cause of action.

C.    Premises Liability

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Here, Moving Defendant argues that “the plaintiff only put the defendant’s name and address, and did not describe whatsoever any facts which articulate the acts or omissions which would cause defendant to be liable” for premises liability. (Dem. 7:18–19.) “Plaintiff’s complaint is utterly deficient for cause of action number two; it literally alleges no facts in the cause of action, as to how the defendant can be liable, where the form required them to do so.” (Id. at 7:22–24.)

Plaintiff argues in reply that “Defendant TOQUE NUEVO owed a duty of care to Plaintiff as a business invitee.” (Pl.’s Opp. 9:14–15.) Plaintiff therefore asserts that she “has sufficiently alleged that Defendant TOQUE NUEVO exercised control over the entrance portion of the premises and either created or allowed the existence of a dangerous condition therein.” (Id. at 9:26–28.)

The Court disagrees and finds that nowhere in the complaint does Plaintiff allege that she was an invitee of Moving Defendant’s business, nor that Moving Defendant was owned or otherwise possessed the subject premises. Instead, Plaintiff explicitly alleges that she was injured while “walking towards” Moving Defendant’s business. (Compl. p. 4.)

Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to constitute a cause of action for Premises Liability. Accordingly, the Court sustains the demurrer as to Plaintiff’s second cause of action.

D.    Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).¿

Here, the Court notes that this is the first demurrer brought against Plaintiff’s original complaint, and that Plaintiff requests leave to amend her complaint “to allege additional detail including, but not limited to, the specific nature of the dangerous condition on the premises and the manner in which Defendant TOQUE NUEVO breached its duty of care in safely maintaining the premises and keeping it free of any potential hazards.” (Pl.’s Opp. 10:15–18.) Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiff 30 days leave to amend the complaint to cure the defects set forth above.

CONCLUSION 

The demurrer is sustained with 30 days leave to amend.