Judge: Anne Hwang, Case: 22STCV02323, Date: 2024-01-09 Tentative Ruling

Case Number: 22STCV02323    Hearing Date: March 13, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On January 20, 2022, Plaintiffs TC Nevada, LLC and TLC Luxury, LLC (“Plaintiffs”) filed a complaint against Defendants Ramon Valdez, Ramon Valdez dba Matrix Mattresses, Elias Hernandez, Elias Hernandez dba H&H Pallet Company, Luzelena Hernandez, Luzelena Hernandez dba H&H Pallet Company, and Does 1 to 50 for negligence and negligence per se.  

On August 2, 2023, Plaintiffs filed an amendment to the complaint, substituting Defendant Tere Pallets Corporation (“Defendant”), as Doe 26.

Defendant now demurs to the entire complaint on the basis that it fails to state facts to constitute a cause of action. Plaintiffs oppose and Defendant replies.

LEGAL STANDARD

The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) 

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).  

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

According to the Declaration of Rebecca D. Webster, it does not appear a meet and confer took place by telephone or in-person. Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).)

JUDICIAL NOTICE

The Court takes judicial notice of the existence of the Declarations of Nina Scotti and Stephen Bucklin as part of the Court’s record but does not take notice of the truth of the matters asserted within. (Evid. Code § 452(d).)

ANALYSIS

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)   

Here, the complaint contains the following allegations:

“The true names and capacities of Defendants DOES 26 through 50, inclusive, and the full extent of the facts linking those fictitiously designed Defendants with the causes of action alleged herein, are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. Plaintiff is informed, believes, and alleges that at all times alleged herein, each Defendant designated as a DOE was acting as an agent, servant, employee, and/or alter ego of its Co-Defendants, and was acting in the course and scope of its authority as such agent, servant, employee, and/or alter ego of its Co-Defendants. Each Defendant designated herein as DOE. is in some manner legally responsible to Plaintiff for damages or other relief as prayed for herein.”

(Complaint, 3:21–4:1.)

The complaint alleges that the defendants also knew or should have known of a dangerous condition on their property, namely negligently stacked pallets and negligently stored propane. (Complaint, 4:3–8.) It also alleges they owed a duty not to stack the pallets beyond the height allowed by law, and that this caused Plaintiff’s damages. (Complaint, 4:9–15.) Although Defendant argues that certain evidence contradicts Plaintiff’s claims (see Reply at pp. 4-5), the truth of such evidence is not judicially noticeable and therefore cannot be considered for purposes of this demurrer.

However, the Court agrees that the complaint does not identify which statutes, ordinances, regulations, or codes form the basis of the negligence per se claim. Without naming which requirement Defendant has failed to satisfy, the pleading is subject to demurrer. (See Evraets v. Intermedics Intraocular, Inc. (1994) 29 Cal.App.4th 779, 794 [“Evraets’s complaint fails to illuminate which of the innumerable regulatory requirements respondents failed to satisfy. In this regard, his pleading is inadequate. Evraets must specify which of the protocols respondents violated. He cannot make respondents and the court guess at which law was violated.”] [abrogated on other grounds by Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 497-502].) To the extent that Plaintiffs are able to specify at the hearing which regulation will be asserted, they will be granted leave to amend.

CONCLUSION AND ORDER

Therefore, Defendant’s demurrer to Plaintiffs’ complaint is overruled in part and sustained in part.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.