Judge: David B. Gelfound, Case: 23CHCV02211, Date: 2024-05-15 Tentative Ruling

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Case Number: 23CHCV02211    Hearing Date: May 15, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER

Motion filed: 3/27/24

MOVING PARTY: Defendant Pilot Travel Centers LLC (the “Moving Defendant” or “Pilot”)

RESPONDING PARTY: Plaintiffs Jose Antonio Mesa-Marentes and Maria Guadalupe Esquivel-Carreon (collectively, “Plaintiffs”)

NOTICE: OK 

RELIEF REQUESTED: An order from this Court granting Defendant’s demurrer to the First Amended Complaint.

TENTATIVE RULING: The demurrer is OVERRULED.

BACKGROUND

This action arises from alleged personal injury and property damage sustained by Plaintiff Jose Antonio Mesa-Marentes in a motor vehicle collision with a vehicle operated by Defendant Driver Steven Bloberg (the “Crash”). (FAC, ¶ 18.)

On July 26, 2023, Plaintiffs filed their complaint, alleging against ten named defendants the following causes of action: (1) Motor Vehicle Negligence; (2) Negligent Entrustment of a Motor Vehicle; (3) General Negligence; (4) Dangerous Condition of Public Property; and (5) Loss of Consortium. Subsequently, on September 7, 2023, Plaintiffs amended their complaint to name the Moving Defendant as Doe Defendant 1.

On January 5, 2024, the Department F51 Court sustained Pilot’s demurrer to Plaintiffs’ initial complaint with leave to amend.

On February 2, 2024, Plaintiffs filed their operative First Amended Complaint (“FAC”). Subsequently, on April 2, 2024, Plaintiffs refiled the FAC, correcting a clerical error on its caption page.

On March 27, 2024, the Moving Defendant filed the instant Demurrer (the “Demurrer”). On May 3, 2024, Plaintiffs filed their Opposition. Subsequently, on May 8, 2024, the Moving Defendant replied. 

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A general demurrer is proper, and typically used, where the plaintiff fails to allege “facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.)

“The sufficiency of a cause of action is evaluated by presuming all of the material factual allegations in the complaint are true.” (Aubry v. TriCity Hospital Dist. (1992) 2 Cal 4th 962, 966 – 967 (Aubry).) In ruling on a demurrer, a court may consider facts that are properly subject to judicial notice. (Arroyo v. Plosay, 225 Cal. App. 4th 279.) In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while "[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact." (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120, 135.) Additionally, “[a] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

“It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” Aubry, supra, 2 Cal. 4th at 967.)

A.                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).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

On February 27, 2024, Pilot’s counsel sent a meet and confer letter and requests to Plaintiffs’ counsel, detailing the issues raised in the instant Demurrer. (Attia Decl, ¶ 7.) As of the filing of the Demurrer, Pilot’s counsel had not responded. (Id., ¶ 8.)

Consequently, the Court finds that the requirement for in-person or telephonic meet and confer has not been met.

B.                 Third Cause of Action – General Negligence

'The elements of a cause of action for negligence are well established. They are "(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach was the proximate or legal cause of the resulting injury [damages]." (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) The absence of any one of the elements is fatal to a negligence claim. (See Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 195.) Premises liability is governed by ordinary negligence principles. (Rowland v. Christian (1968) 69 Cal.2d 108, 118.) Landowners are held to the general statutory duty to use “ordinary care or skill in the management” of their property, and are responsible for injuries proximately caused by the failure to exercise such care, except where injured persons, “willfully or by want or ordinary care,” brought the injury upon themselves. (Civ. Code § 1714, subd. (a); Ann M v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674-675; Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467.)

            “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 (Berkley).) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

            Here, the Moving Defendant argues that the FAC contains limited new allegations compared to the initial complaint, which the Department F51 Court found insufficient to state a cause of action for general negligence. (Dem., at p. 3.) Specifically, Pilot notes that the new allegations in paragraph 18 of the FAC, which are emphasized in in bold, state that “[the Crash occurred] at the approximate location of Frazier Mountain Park Road, 550 feet west of Lebec Road, and the driveway of PILOT and/or TUJHMM in Unincorporated, California, the County of Los Angeles[.]” (Bold in original.) Pilot contends that by merely adding “the driveway of PILOT and/or TUJHMM” indicates that PILOT was operating a business “on the land where” the accident happened but does not specifically allege the accident occurred on Pilot’s premises. (Dem., at p. 5.)

The Court disagrees with Pilot’s interpretation under the standard of review for a demurrer. In reviewing a demurrer, the Court must presume “all of the material factual allegations in the complaint are true.” (Aubry, supra, 2 Cal 4th at pp. 966 – 967.) Pilot seems to concede that the pleading indicates it was operating a business at the location of the accident. By liberal construction and reasonable inference, the Court finds that the allegations sufficiently state that Pilot owes “an ordinary care of management” of its driveway. While Pilot argues that the “driveway of PILOT” does not explicitly show it is on Pilot’s premises, the Court finds the description adequate to meet the standards of pleading in general terms for Negligence claims. (See Berkley, supra, 152 Cal.App.4th at p. 527.) Further specifics can be developed during discovery.

Pilot further contends that the FAC’s allegations improperly contradict the location of the Crash as stated in the initial complaint, arguing that the conflicting factual allegations should be disregarded in the amended complaint, citing Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Specifically, Pilot asserts that the FAC alleges the Crash occurred “approximately both on Frazier Mountain Park Road” and “the driveway of PILOT,” whereas the initial complaint only stated that the accident occurred on Frazier Mountain Park Road only. (Dem., at p. 6.)

The Court notes that when testing a pleading against a demurrer, courts “will not close their eye to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.” (See Alphonzo E. Bell Corp. v. Bell View Oil Syndicate (1941) 46 Cal.App.2d 684.) Contrarily, Plaintiff argues that the additional information seeks to clarify the location. (Opp’n., at p. 6.) The Court finds that Defendant’s argument that the additional detail constitutes a contradiction is unpersuasive.

The Court agrees with Plaintiff to the extent that it finds nothing in the FAC that is so inconsistent with facts alleged in the initial complaint as to render the FAC demurrable.

Consequently, the Court OVERRULES the Demurrer as to the Third Cause of Action.

C.                Fifth Cause of Action – Loss of Consortium

In a cause of action for Loss of Consortium, the plaintiff must establish the following elements: (1) valid and lawful marriage between the plaintiff and injured spouse, at the time of injury; (2) tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by plaintiff; and (4) loss proximately caused by defendant’s act. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746 n. 2; see also Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 596 fn.16, [claim for loss of consortium fails, where it is derivative of, or dependent upon, other causes of action that fail.])

Here, Pilot argues that Plaintiffs’ Loss of Consortium claim fails as a matter of law because they have not stated a valid cause of action for General Negligence against Pilot, the underlying claim upon which the Loss of Consortium claim depends. (Dem., at p. 7.)

Given that the Court has already concluded that Plaintiffs’ FAC presents sufficient factual allegations to state a cause of action for General Negligence, the Moving Defendant’s argument on this basis should fail.

Accordingly, the Court OVERRULES the Demurrer as to the Fifth Cause of Action.

CONCLUSION

The Moving Defendant Pilot Travel Centers LLC’s Demurrer is OVERRULED.

The Moving Defendant Pilot Travel Centers LLC is ordered to serve and file its Answer to the First Amended Complaint within 30 days.

Moving party is ordered to give notice.