Judge: Anne Hwang, Case: 22STCV30595, Date: 2023-10-30 Tentative Ruling

Case Number: 22STCV30595    Hearing Date: October 30, 2023    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 September 19, 2022, Plaintiff Artur Karapetyan (Plaintiff) filed a complaint against Defendants Command Security, City of Los Angeles, and Does 1 to 100 for general negligence.

On August 24, 2023, Plaintiff added Defendant Smarte Carte Corporation (Defendant) as Doe 1. Defendant now demurs to the complaint on the basis that it fails to state facts that constitute a cause of action and is uncertain. Plaintiff opposes 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.)  A general demurrer may be brought where the dates alleged in the complaint show the cause of action is barred by the statute of limitations. (See Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)

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).)

Defendant’s declaration states the parties met and conferred by email. (Sawyer Decl. ¶ 4.)  Therefore, the requirement is not met because they did not confer by telephone or in-person. However, “[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).)

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.)

Code of Civil Procedure section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.)  “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)       

Here, the Complaint is not uncertain because it states sufficient facts to apprise the Defendant on the issues and basic facts of the action. The Complaint alleges:

“On or about August 04, 2021, Plaintiff was at the Tom Bradley International Terminal which is owned, operated, and controlled by Defendant, City of Los Angeles. At that time and place, Plaintiff was using said Defendant's escalator, as Plaintiff neared the bottom of the escalator that leads down to the TSA checkpoint, Defendants, and each of their, employee and/or agent, while in the course and scope of his employment and/or agency for said Defendants, negligently, carelessly, wrongfully, and recklessly collided a luggage cart that he was operating into Plaintiff. As a result of said employee's actions, Plaintiff was knocked over said cart, causing him to fall and sustain physical injury.”

(Complaint, 5.)

The word “Defendants” can be reasonably attributed to Smarte Carte Corporation since it has been added as a Defendant. Therefore, based on the allegations, Plaintiff has alleged that Defendant’s employee or agent, in the scope of employment, negligently collided a luggage cart into Plaintiff, causing him injury. As a result, enough facts are pled to constitute a cause of action for negligence. Additionally, the allegations are not so ambiguous and unclear to warrant sustaining on the basis of uncertainty.

Therefore, Defendant’s demurrer on the basis of uncertainty and failure to state a cause of action is overruled.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant Smarte Carte Corporation’s demurrer to Plaintiff’s complaint. Defendant shall file a responsive pleading within 30 days.

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