Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00393, Date: 2023-10-20 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00393, Date: 2023-10-20 Tentative Ruling

Case Number: 23GDCV00393 Hearing Date: October 20, 2023 Dept: E

Case Name: FIDELINA DIAZ-ORELLANA v. FOREST LAWN MEMORIAL-PARK ASSOCIATION, and DOES 1-25 inclusive

Case No: 23GDCV00393
Hearing Date: 10/20/2023 – 10:00am

TENTATIVE RULING ON DEMURRER

RELIEF REQUESTED
Defendant, Forest Lawn Memorial-Park Association, demurs to Plaintiff, Fidelina Diaz-Orellana’s, First Amended Complaint (FAC) pursuant to CCP §430.10 on the following grounds:

1. Plaintiff’s FAC fails to allege sufficient facts to state the first cause of action for general negligence as against Defendant and is uncertain. (Civ. Proc. Code, §§ 430.10 (e), (f).)

2. Plaintiff’s FAC fails to allege sufficient facts to state the second cause of action for premises liability (count one-negligence) as against Defendant and is uncertain. (Civ. Proc. Code, §§ 430.10 (e), (f).)

3. Plaintiff’s FAC fails to allege sufficient facts to state the second cause of action for premises liability (count two-willful failure to warn) as against Defendant and is uncertain. (Civ. Proc. Code, §§ 430.10 (e), (f).)

For the reasons set out below, the Demurrer will be OVERRULED.

BACKGROUND
Plaintiff filed a Complaint on 02/27/2023. On 08/15/2023, Plaintiff filed an FAC alleging two causes of action for – (1) General Negligence and (2) Premises Liability. The FAC is a form complaint.

Relevant to this demurrer and the motion to strike, the Court notes that the second cause of action is titled Premises Liability in the FAC. However, the Court notes that the second cause of action for Premises Liability mentions two counts within the second cause of action for Premises Liability. Count One within the second cause of action is labeled as Negligence and Count Two within the second cause of action is labeled as Willful Failure to Warn.

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, supra, 147 Cal.App.4th at 747.)

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 … is that [the] 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.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so deficient that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
First Cause of Action - Negligence
As a preliminary matter, although Defendant’s notice page states it is demurring to the first cause of action, it is difficult to determine where in Defendant’s motion it contains any arguments as to how Plaintiff did not state a cause of action for negligence. The closest Defendant seems to get to attacking the first cause of action is on page 5 of the demurrer, which refers to the second cause of action, not the first cause of action. Specifically, Defendant argued, “Substantively, Plaintiff’s second cause of action fails for want of the requisite facts to support same. It does not incorporate or reference other facts from other portions of the FAC. There are no allegations of conduct between Defendant and Plaintiff. Paragraph GN-1 does not identify the duty owed to Plaintiff and how Defendant breached that duty. It does not outline how Defendant caused Plaintiff’s injuries. As such, his claim of Negligence fails as a matter of law.” (Demurrer p. 5.)

To the extent that Defendant intended its arguments to be targeted to the first cause of action, this Court does not find Defendant’s arguments availing.

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62 citing Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) “Whether a duty of care exists is a question of law to be determined on a case-by-case basis.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62 citing Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.)

On page 4 of the FAC with respect to the first cause of action for negligence, Plaintiff alleged:

On or about March 11, 2021, Plaintiff FIDELINA DIAZ-ORELLANA was seriously injured at Defendants' premises located at 1712 South Glendale Avenue in the City of Glendale, County of Los Angeles, State of California. On or about March 11, 2021, Defendants and each of them negligently and carelessly owned, occupied, maintained, inspected, supervised, operated, controlled, managed, cleaned, used, repaired, directed and superintended the above-described premises so as to cause Plaintiff FIDELINA DIAZ-ORELLANA ,a invitee and/or guest of the same, to slip and fall when she came into contact with a dangerous and hazardous condition on the subject property namely, a uneven, steep, slippery, loose, and/or dangerous hill and/or terrain. Defendants and each of them owed Plaintiff a duty to exercise reasonable care in the maintenance, supervision, repair, and operation of its premises. As a direct and proximate result of the negligence and carelessness of Defendants and each of them, Plaintiff FIDELINA DIAZ-ORELLANA sustained injuries and damages. Defendant and its employees, agents and/or staff knew, or through the exercise of ordinary care should have known, that the subject dangerous terrain existed on the grounds of its premises. Defendants failed to repair, protect against harm, and/or adequately warn of the subject dangerous condition, thereby breaching their duty owed to Plaintiff. Due to the acts and failures to act, Defendants and each of them are liable for the injuries to Plaintiff FIDELINA DIAZ-ORELLANA.

(FAC p. 4.)

Defendant’s arguments that Plaintiff did not identify the duty owed to Plaintiff , how Defendant breached that duty, and that Plaintiff did not outline how Defendant caused Plaintiff’s injuries is unavailing because those things were alleged, as indicated in the above-referenced allegations from the FAC on page 4.

TENTATIVE RULING FIRST CAUSE OF ACTION – GENERAL NEGLIGENCE
Defendant’s demurrer on grounds of failure to state sufficient facts and uncertainty is OVERRULED because Plaintiff alleged sufficient facts to state a cause of action for negligence.

Second Cause of Action - Premises Liability

Defendant argues that the FAC does not state sufficient facts to support premises liability under Premises Liability (Count One – Negligence) because: (1) Paragraph Prem.L-1 does not identify the condition that injured Plaintiff; (2) It does not incorporate or reference other facts from other portions of the FAC; and (3) There are no allegations of conduct between Defendant and Plaintiff.

Defendant’s arguments are unavailing for several reasons.

Defendant argues that the Premises Liability cause of action does not incorporate or reference other facts from other portions of the FAC. Defendant’s argument is incorrect. Near the top of page 5 of the FAC under the second cause of action for Premises Liability, Plaintiff alleged, “Plaintiff herein re-alleges and incorporates paragraph GN-1.” (FAC p.5.)

Defendant argues that Paragraph Prem. L-1 does not identify the condition that injured Plaintiff. Here, Defendant’s argument is also incorrect. Paragraph Prem.L-1 incorporated GN-1, and GN-1 identifies that condition that injured Plaintiff.

Defendant also argues that there are no allegations of conduct between Defendant and Plaintiff. Here, Defendant’s argument is incorrect. There are allegations of conduct between Defendant and Plaintiff both in Prem. L-1 and GN-1. Further, GN-1 is incorporated into Prem. L-1.

The elements of a cause of action for premises liability are the same as those for negligence. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207 citing Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998) Accordingly, the plaintiff must prove a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. (Jones v. Awad, supra, 39 Cal.App.5th at 1207 citing Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)

Here, Plaintiff sufficiently alleged the elements for premises liability.

Legal Duty to Use Due Care
In relevant part of GN-1, which was incorporated into the second cause of action for premises liability, Plaintiff alleged, “On or about March 11, 2021, Plaintiff FIDELINA DIAZ-ORELLANA was seriously injured at Defendants' premises located at 1712 South Glendale Avenue in the City of Glendale, County of Los Angeles, State of California. On or about March 11, 2021, Defendants and each of them negligently and carelessly owned, occupied, maintained, inspected, supervised, operated, controlled, managed, cleaned, used, repaired, directed and superintended the above-described premises so as to cause Plaintiff FIDELINA DIAZ-ORELLANA ,a invitee and/or guest of the same, to slip and fall when she came into contact with a dangerous and hazardous condition on the subject property namely, a uneven, steep, slippery, loose, and/or dangerous hill and/or terrain. Defendants and each of them owed Plaintiff a duty to exercise reasonable care in the maintenance, supervision, repair, and operation of its premises.” (FAC, p. 4.)

Further, Plaintiff alleged, “Defendant and its employees, agents and/or staff knew, or through the exercise of ordinary care should have known, that the subject dangerous terrain existed on the grounds of its premises.” (FAC, p.4.)

Therefore, Plaintiff sufficiently alleged the first element of premises liability.

Breach of Such Legal Duty

In relevant part of GN-1, which was incorporated into the second cause of action for premises liability, Plaintiff alleged, “Defendants failed to repair, protect against harm, and/or adequately warn of the subject dangerous condition, thereby breaching their duty owed to Plaintiff.” (FAC, p.4.)

Therefore, Plaintiff sufficiently alleged the second element of premises liability.

The breach was the proximate or legal cause of the resulting injury
In relevant part of GN-1, which was incorporated into the second cause of action for premises liability, Plaintiff alleged, “As a direct and proximate result of the negligence and carelessness of Defendants and each of them, Plaintiff FIDELINA DIAZ-ORELLANA sustained injuries and damages.” (FAC, p. 4.) Further, Plaintiff alleged in GN-1, “Due to the acts and failures to act, Defendants and each of them are liable for the injuries to Plaintiff FIDELINA DIAZ-ORELLANA.” (FAC p. 4.)

Therefore, Plaintiff sufficiently alleged the third element of premises liability.

TENTATIVE RULING – SECOND CAUSE OF ACTION – PREMISES LIABILITY
Defendant’s demurrer to the second cause of action on grounds of failure to allege sufficient facts and uncertainty is OVERRULED because Plaintiff alleged sufficient facts to state a cause of action for premises liability.

The Court notes that Defendant demurred to the second cause of action for premises liability (count one – negligence) and the second cause of action for premises liability (count two – willful failure to warn). The Court’s analysis only discussed premises liability (count one – negligence) despite Defendant arguing that Plaintiff did not allege facts for premises liability under count two (willful failure to warn).

The Court did not discuss Defendant’s arguments on premises liability count two (willful failure to warn) because the Court will discuss those issues in Defendant’s motion to strike. The Court will address those issues in the motion to strike because even if Defendant is correct that Plaintiff did not sufficiently allege premises liability under count two (willful failure to warn), the Plaintiff has alleged sufficient facts for premises liability under count one (negligence). Therefore, even if Defendant is correct that premises liability count two (willful failure to warn) is not sufficiently alleged, it appears as if it would be improper to sustain the demurrer to the second cause of action when Plaintiff appeared to allege sufficient facts under at least one theory of premises liability, namely premises liability count one (negligence).

TENTATIVE RULING DEMURRER
Defendant’s demurrer to the first and second causes of action in the FAC on the grounds of failure to state sufficient facts and uncertainty is OVERRULED.

TENTATIVE RULING ON MOTION TO STRIKE

RELIEF REQUESTED
Defendant, Forest Lawn Memorial-Park Association (“Forest Lawn”), moves the Court for an order striking the following portions of the FAC filed by Plaintiff: (1) Page 4 (Form PLD-PI-001(4)), Count Two: Willful Failure to Warn (Civil Code, section 846)

For the reasons set out below, the Motion to Strike will be DENIED.

Legal Standard Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

ANALYSIS
As a preliminary matter, Defendant’s notice page indicates it is moving to strike, “Page 4 (Form PLD-PI-001(4)), Count Two: Willful Failure to Warn (Civil Code, section 846).”

The Court notes that it appears as if Defendant intended to state, “Page 5….Count Two: Willful Failure to Warn…” because Count Two – Willful Failure to Warn is on Page 5 of the FAC and not on page 4. The Opposition does not bring this issue up, and the Opposition disputes the merits of Defendant’s arguments. Therefore, the Court notes that it will be referring to “Count Two – Willful Failure to Warn” on page 5 of the FAC.

Second Cause of Action - Premises Liability – Count Two – Willful Failure to Warn

The Court notes that Plaintiff sufficiently alleged a cause of action for premises liability under count one – negligence. Therefore, this motion to strike only pertains to the allegation of willful failure to warn.

On page 4 of the FAC, with respect to the first cause of action for negligence, Plaintiff alleged:

(FAC p. 4.)

Further, the allegations above were incorporated into the second cause of action for premises liability.

Defendant argues that Plaintiff fails to allege any specific facts that Defendant engaged in any willful and/or malicious conduct in allegedly failing to guard and/or warn against a dangerous condition. Defendant also argues that Plaintiff didn’t allege specific facts that Defendant has actual or constructive knowledge of any alleged dangerous condition in the subject area. As to these arguments, Defendant is incorrect. Plaintiff in fact alleged that Defendant knew that the subject dangerous terrain existed on the grounds of its premises.

As stated in Manuel v. Pacific Gas & Electric Co. :

…[C]ases have held that “[t]hree essential elements must be present to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]” (New, supra, 171 Cal.App.3d at pp. 689–690, 217 Cal.Rptr. 522; Calvillo, supra, 19 Cal.4th at p. 730, 80 Cal.Rptr.2d 506, 968 P.2d 65.) ]

(Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 945.)

(1)Actual or Constructive Knowledge of the Peril to Be Apprehended

Here, Plaintiff sufficiently alleged this element. “Defendant and its employees, agents and/or staff knew, or through the exercise of ordinary care should have known, that the subject dangerous terrain existed on the grounds of its premises.” (FAC p. 4.; emph added.)

(2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger

Here, Plaintiff appears to have alleged this element sufficiently for this stage of the proceeding. The Plaintiff alleges that Defendant knew of the dangerous terrain; it seems obvious that an allegation that a Defendant knows of dangerous terrain necessarily means that the Defendant knows that injury is a probable result of that danger. To argue otherwise elevates form over substance, in the Court’s view.

(3) conscious failure to act to avoid the peril

Here, Plaintiff sufficiently alleged this element on page 5 of the FAC under Count Two- Willful Failure to Warn by alleging that “The defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity were Forest Lawn Memorial-Park Association, And Does 1-25.” (FAC p. 5.)

Civil Code § 846
Defendant also argued that Count Two – Willful Failure to Warn should be stricken because “Moreover, Cal. Civ. Code Section 846 does not apply to this case.” (Def. Mot. p.3.)

The Court does not find this statement persuasive: Defendant provided no legal support or legal argument for this conclusion.

TENTATIVE RULING
Defendant’s motion to strike Count Two – Willful Failure to Warn in the second cause of action for Premises Liability is OVERRULED.