Judge: Anne Hwang, Case: 23STCV11886, Date: 2023-10-24 Tentative Ruling

Case Number: 23STCV11886    Hearing Date: October 24, 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 May 25, 2023, Plaintiff Folorans Ozeri (Plaintiff) filed a form complaint against DK Connections, LLC, Otis Elevator Company LLC, Ashkenazy Acquisition Corporation, DK Connections Lease, LLC, and Does 1 to 10 for injuries allegedly sustained from a defective elevator. The Complaint asserts causes of action for general negligence, premises liability, and products liability. Plaintiff also seeks exemplary damages.

Defendant DK Connections, LLC (Defendant) now demurs on the following grounds:

1. The First Cause of Action for General Negligence is uncertain.
2. The Second Cause of Action for Premises Liability is uncertain.
3. The Second Cause of Action for Premises Liability, ¶ Prem.L-3 fails to state facts sufficient to constitute a cause of action.
4. The Second Cause of Action for Premises Liability, ¶ Prem.L-4 fails to state facts sufficient to constitute a cause of action.
5. The Second Cause of Action for Premises Liability, ¶ Prem.L-5.b fails to state facts sufficient to constitute a cause of action and is uncertain.
6. The Third Cause of Action for Products Liability is uncertain.
7. The Third Cause of Action for Products Liability, ¶ Prod.L-7 fails to state facts sufficient to constitute a cause of action and is uncertain.

Defendant also moves to strike the prayer for relief for exemplary damages. No opposition was filed.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

            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

Defendant’s counsel declares that on July 25, 2023, he sent an email to Plaintiff’s counsel asking that they speak over the telephone to meet and confer about this demurrer. (Soll Decl. ¶ 4.) Defendant’s counsel then called Plaintiff’s counsel on July 25 and 26^th, 2023 and August 1, 2023, but was unable to confer. Defendant did not receive a response to his email or prior telephone calls. (Id. ¶ 5.) Therefore, Defendant has satisfied the meet and confer requirement.

ANALYSIS

First, Defendant demurs to the entire, first, second, and third causes of action because they are uncertain. Demurrers for uncertainty are disfavored and strictly construed because ambiguities in a complaint can be clarified under modern discovery procedures. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)  When a complaint “contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Id. [quoting Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2].)

Here, the first and second causes of action are not uncertain because the general issues are ascertainable. The general negligence and premises liability causes of action each discuss a dangerous condition on the premises of the Beverly Connection that took place on January 3, 2022. Plaintiff’s allegations that an elevator on the premises continuously malfunctioned and that the premises were dangerous due to a condition on the floor could pertain to the same issue or different conditions. However, this ambiguity is something that can be clarified in discovery. Therefore, Defendant’s demurrer to the first and second causes of action on the basis of uncertainty is overruled.

However, the third cause of action alleges products liability. “The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury. [Citations omitted.] More specifically, plaintiff must ordinarily show: (1) the product is placed on the market; (2) there is knowledge that it will be used without inspection for defect; (3) the product proves to be defective; and (4) the defect causes injury.” (Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 695 [citations omitted, emphasis in original].) “As with an action asserted under a strict liability theory, under a negligence theory the plaintiff must prove a defect caused injury. [Citation omitted.] However, under a negligence theory, a plaintiff must also prove an additional element, namely, that the defect in the product was due to negligence of the defendant.” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1304-05 [citations and alterations omitted].) Here, the complaint alleges that on or about “January 3, 2022,” “the elevator on the premises continuously malfunctioned causing injury to Plaintiff.” (See Complaint at Prod. L-1.) It is unclear whether the complaint is alleging a warning defect, manufacturing defect, design defect, or something else. Accordingly, the Court grants the demurrer as to the third cause of action.

Next, Defendant demurs to three paragraphs in the premises liability cause of action.

The first is Prem. L.3: Willful failure to warn under Civil Code section 846. Civil Code section 846 states that the owner of real property owes no duty of care to keep the premises safe for any recreational purpose except for, among others, a willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. (Civil Code § 846 (a), (d)(1).) Therefore, the exception for willful failure to warn applies if it is established that “(1) the defendant must be the owner of an ‘estate or any other interest in real property, whether possessory or nonpossessory;’ and (2) the plaintiff's injury must result from the ‘entry or use [of the ‘premises'] for any recreational purpose.’” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1100.)

Here, the Complaint does not allege facts that Plaintiff was entering the premises for a recreational purpose. Therefore, the demurrer to Prem. L.3 is sustained because the recreational purpose is a prerequisite to the failure to warn exception.

Next, Defendant demurs to Prem.L-4 which alleges there is a dangerous condition of public property. To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition or the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  (Gov. Code § 835.) 

Plaintiff did not allege that Defendant was a public entity in the Complaint. On item 5a(2), Plaintiff checked that Defendant was a corporation and did not check item 5a(4) for public entities. Therefore, since Defendant must be a public entity to state a cause of action under section 835, the demurrer to Prem.L-4 is sustained.

Next, Defendant demurs to Prem.L-5.b for failing to constitute a cause of action. This section on the form complaint alleges that Defendant is liable to Plaintiff for other reasons to be specified in attachment Prem.L-5b. However, the box for Prem.L-5b is not checked and no attachment is provided. Therefore, Plaintiff has not alleged any facts about the other reasons why Defendant is liable. As a result, the demurrer to Prem.L-5.b is sustained.

The burden is on Plaintiff to establish that the pleading can be amended. Since Plaintiff does not oppose, the burden is not met. Therefore, the Court sustains the demurrer without leave to amend.  

Defendant’s Motion to Strike             

            Defendant also moves to strike the exemplary damages attachment.[1]

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (Code Civ. Proc. §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (Code Civ. Proc. § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)    

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.  The additional component of ‘despicable conduct’ must be found.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Ibid.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.) 

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) 

Here, the Complaint does not set forth facts that Defendant acted with oppression, fraud, or malice. Instead, Plaintiff alleges facts sounding in negligence, which, as discussed above, is not sufficient to justify an award for punitive damages. Accordingly, the Court grants the motion to strike the exemplary damages attachment. As Plaintiff has not opposed the motion and therefore has not established how the pleading can be properly amended, the Court grants the motion without leave to amend.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to the first and second causes of action.

The Court SUSTAINS Defendant’s demurrer to Plaintiff’s Second Cause of Action for Premises Liability ¶ Prem.L-3, Prem.L-4, Prem.L-5b, and Plaintiff’s Third Cause of Action without leave to amend.

Defendant’s motion to strike is GRANTED without leave to amend.

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