Judge: Ashfaq G. Chowdhury, Case: 24GDCV00098, Date: 2024-03-22 Tentative Ruling
Case Number: 24GDCV00098 Hearing Date: March 22, 2024 Dept: E
Case No: 24GDCV00098
Hearing Date: 03/22/2024 – 8:30am
Trial Date: UNSET
Case Name: ALLYSON OKOJIE v. TJX COMPANIES INC dba
HomeGoods, HomeGoods Inc.
[TENTATIVE RULING ON
DEMURRER]
Moving Party: Defendant, HomeGoods, Inc. (Defendant)
Responding Party: Plaintiff, Allyson Okojie
RELIEF REQUESTED
“Defendant, HomeGoods, Inc., demurs to Plaintiff’s Complaint. Defendant’s demurrer
is made pursuant to Code of Civil Procedure section 430.30 and California Rules
of Court, rule 3.1320, and is made on the following grounds:
1.
Plaintiff’s first cause of action for Premises Liability fails to state facts
sufficient to constitute a cause of action. (Code Civ. Proc. §430.10(e).)
2.
Plaintiff’s first cause of action for Premises Liability is uncertain,
ambiguous and unintelligible Plaintiff has not stated any facts or allegations
as to Defendant’s notice or that Defendant’s conduct was a substantial factor
in causing Plaintiff’s injuries. (Code Civ. Proc. §430.10(f).)
1. Plaintiff’s third cause of action for Negligent
Infliction of Emotional Distress fails to state facts sufficient to constitute
a cause of action. (Code Civ. Proc. §430.10(e).)
2. Plaintiff’s third cause of action for Negligent
Infliction of Emotional Distress is uncertain, ambiguous and unintelligible as
Plaintiff has not stated any facts or allegations. (Code Civ. Proc.
§430.10(f).)
This demurrer is based on this notice, the attached
memorandum of points and authorities in support thereof, the declaration of
Denise Thompson, all records and proceedings in this action, and on such
further argument and evidence as may be presented at the hearing.”
PROCEDURAL
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Moving
Papers: Demurrer/Memo; Proposed Order
Opposition Papers: Opposition
Reply Papers: Reply
Meet and Confer
A party filing a demurrer “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 shall meet and confer at least five days before the date
the responsive pleading is due. If the parties are not able to meet and confer
at least five days prior to the date the responsive pleading is due, the
demurring party shall be granted an automatic 30-day extension of time within
which to file a responsive pleading, by filing and serving, on or before the date
on which a demurrer would be due, a declaration stating under penalty of
perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41, subd. (a)(2).)
Failure to sufficiently meet and confer is not grounds to overrule or sustain a
demurrer. (Id., §430.41(a)(4).)
Defendant’s
counsel states that she emailed Plaintiff to meet and confer, emailed again to
follow up, and she still has not heard back from Plaintiff’s counsel.
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
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.) “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 § 430.10(f), is disfavored and will
only be sustained where the pleading is so bad 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 – Premises Liability
Defendant demurs to the
first cause of action for premises liability for failure to state sufficient
facts and uncertainty.
As
a preliminary matter, it is somewhat uncertain as to what cause of action is
being alleged here. Although page 4 of the form complaint is titled “First
Cause of Action – Premises Liability,” there are also two boxes checked on this
page. One box is titled “Count One – Negligence,” and the other is titled
“Count Two – Willful Failure to Warn.”
Defendant
first argues that under the common law elements
of premises liability, Plaintiff did not successfully allege all
necessary elements.
Setting
aside the issue of whether Plaintiff successfully alleged all the elements of
premises liability, Defendant then argues how Plaintiff did not allege the
elements under Civil Code 846. Defendant presumably makes this argument because
Plaintiff checked the box pertaining to Civil Code 846 and thus Defendant
assumed Plaintiff is alleging a cause of action under Civil Code 846.
Confusingly,
in Opposition, Plaintiff argues that it alleged all the elements of Civil Code §
1714(a). It is unclear why Plaintiff is bringing up Civil Code § 1714(a) in its
Opposition because its Complaint indicates nothing about § 1714.
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.)
As
to whether Plaintiff alleged the elements of duty, breach, causation, and
injury, Plaintiff appears to have alleged these elements.
Defendant
cites to Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203 for the
proposition that a plaintiff must demonstrate that a defendant had actual or
constructive notice of a dangerous condition on its premises and that it had
such notice in time to correct the condition.
While
Defendant is correct to note that Plaintiff did not allege actual or
constructive knowledge in the first cause of action, Ortega did not deal
with a case at the pleading stage.
Further,
the Court notes that the allegations in the first cause of action for premises
liability are slightly bare, but seem to meet the minimum pleading standard.
Confusingly, the second cause of action for general negligence, which is not
demurred to, appears to be more akin to an allegation of premises liability
than does the second cause of action for general negligence; the second cause
of action paints a better picture as to what the Plaintiff is alleging happened
on the incident date.
TENTATIVE RULING FIRST CAUSE OF ACTION PREMISES LIABILITY
The Court will hear
argument. It appears that Plaintiff has alleged premises liability; however,
based on the Complaint and the Opposition, it is unclear if Plaintiff is
attempting to establish liability under common law premises liability, under
Civil Code § 846, or § 1714(a).
Defendant
argues that the first cause of action for premises liability is duplicative of
the second cause of action for general negligence.
While
the Court would agree that the first and second causes of action seem
duplicative, there are a few reasons the Court is hesitant to sustain the
demurrer to the first cause of action for premises liability.
First,
as noted, it isn’t entirely clear if the first cause of action is basing
liability under common law premises liability, Civil Code § 1714(a), or Civil
Code § 846; it is therefore unclear if the actions are duplicative.
Second,
while Defendant correctly cites Palm Springs Villas II Homeowners
Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 for the
proposition that a demurrer is properly sustained without leave to amend as to
the cause of action that contains allegations found in other causes of action
and thus adds nothing to the complaint by way of fact or theory of recovery, there
is also case law finding that duplicative allegations are not grounds for
demurrer and that a motion to strike is the proper way to address duplicative
material. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)
162 Cal.App.4th 858, 890.)
TENTATIVE RULING THIRD CAUSE OF ACTION – NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS
Defendant argues as
follows:
“[The] negligent causing
of emotional distress is not an independent tort but the tort of negligence …’
‘The traditional elements of duty, breach of duty, causation, and damages
apply. Whether a defendant owes a duty of care is a question of law. Its existence
depends upon the foreseeability of the risk and upon a weighing of policy
considerations for and against imposition of liability.’ “(Marlene F. v.
Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [257
Cal.Rptr. 98, 770 P.2d 278], internal citations omitted.)
(Def. Mot. p.7.)
Defendant then argues that Plaintiff has pled
negligence three times in her Complaint. Defendant also argues Plaintiff has
only alleged that she sustained “physical & emotional injuries” as a result
of Defendant’s negligence. Further, Defendant argues that the third cause of
action should be stricken as duplicative of the first two causes of action.
In Opposition, Plaintiff argues that NIED is not
duplicative of general negligence because Plaintiff’s NIED cause of action
contains separate elements from general negligence.
Plaintiff’s Complaint alleges, “On the above
date and time, as a direct and proximate result of the negligence,
carelessness, recklessness, wantonness and unlawfulness of the Defendant(s),
Plaintiff now suffers from severe emotional distress caused by the resulting
physical harm and fear of permanent injury that is not fully probably
compensable in a negligence action.” (Compl. p.6.)
The Court will hear argument.
If the NIED claim contains the same elements as
negligence, the Court is unclear as to what Plaintiff is alleging the breach to
be. The allegations in the first and second cause of action are not
incorporated into the third cause of action.