Judge Elaine W. Mandel, Case Number: 23SMCV04997, Date: 2024-03-28 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV04997, Date: 2024-03-28 Tentative Ruling

Case Number: 23SMCV04997 Hearing Date: March 28, 2024 Dept: P

Tentative Ruling

Zanou v. High Horse Malibu, LLC, et al., Case No. 23SMCV04997

Hearing date March 28, 2024

Defendants High Horse Malibu, Terkleson & Szczepanik’s Demurrer and Motion to Strike First Amended Complaint

Plaintiff Zanou sustained injuries after being thrown from a horse after defendant High Horse’s employee lifted the horse’s leg while plaintiff was on the horse. The First Amended Complaint alleges (1) negligence; (2) premises liability; and (3) negligence supervision. All defendants demur and move to strike requested attorneys’ fees.

Defendants’ Demurrer

“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. The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” Id. The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” Ivanoff, supra. “Each element must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff.” City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211.

Defendants argue plaintiff failed to sufficiently allege conduct by defendants Terkleson and Szczepanik. The FAC alleges each defendant owned, operated, managed, maintained, supervised, or otherwise controlled the subject premises (FAC paras. 6, 8), owed a duty of care and breached that duty when the employee caused the horse to be spooked and gallop while plaintiff was on the horse. FAC ¶11- 13. Each cause of action is alleged as to each defendant. The FAC sufficiently alleges that each defendant owed a duty of care and breached that duty, which resulted in damages to plaintiff. OVERRULED.

First Cause of Action for Negligence

“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.

Defendants argue under the doctrine of primary assumption of the risk, defendants did not owe a duty of care to plaintiff, who was participating in a recreational activity. Moreover, defendants contend there are no specific factual allegations that defendants did anything to increase the inherent risks of horseback riding.

Under the doctrine of primary assumption of the risk, “in certain situations the nature of the activity at issue is such that the defendant does not owe a legal duty to the plaintiff to act with due care.” McGarry v. Sax (2008) 158 Cal.App.4th 983, 998. “The doctrine of primary assumption of risk is most frequently applied to sporting activities where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.’” Id. at 999. However, whether the doctrine applies depends on the nature of the activity and the parties’ relationship to it. Id. Furthermore, “defendants…generally do have a duty not to increase the risk of harm beyond what is inherent in the sport” or activity.

Plaintiff was engaged in horseback riding, which is a recreational activity with inherent risks, including horses being startled or spooked. However, plaintiff alleges defendants increased the inherent risks of riding a horse by lifting the horse’s leg while plaintiff was on the horse. FAC paras. 13-14. This is sufficient on demurrer. OVERRULED.

Second Cause of Action for Premises Liability

To state a cause of action for premises liability, plaintiff must allege defendants owned/leased/controlled the premises, were negligent in the use or maintenance of the premises, harm and causation. See, e.g. CACI 1000.

The FAC, para. 19 alleges defendants failed to control the horses and “knew or should have known” that a guest would ride a horse and “a High Horse Malibu employee would try to pull an object from one of the horse’s hoofs, in a dangerous, hazardous, improper or otherwise imprudent manner, while the Plaintiff was sitting atop one of their horses.”

Plaintiff does not allege that the defendants were negligent in the use or maintenance of the property itself. Rather, plaintiff alleges the “property” that was not controlled was the horse and/or that the actions of the employee in lifting the horse’s leg was negligent. This restates the negligence claim; it does not allege a separate premises liability claim. SUSTAINED.

Third Cause of Action for Negligence – Negligent Supervision

“To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor's propensity to do the bad act.” Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.

Plaintiff alleges defendants observed the employee’s behavior and had the ability to train and supervise the employee and “failed to supervise or exercise reasonable care to prevent Defendant Employee’s conduct…”. FAC ¶ 22, 27-28. OVERRULED.

Defendants’ Motion to Strike Attorney’s Fees

Defendants move to strike the request for attorney fees (FAC, p. 10, prayer, para. 4), as the FAC fails to identify any statutory or contract provision for such. Pursuant to Code of Civil Procedure Section 1021, “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” Plaintiff does not allege that a contract or statute provides for attorney’s fees. GRANTED.