Judge: Frank M. Tavelman, Case: 23BBCV02527, Date: 2024-09-20 Tentative Ruling

Case Number: 23BBCV02527    Hearing Date: September 20, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Allen Hagobian (Plaintiff) brings this action against Panda Express Inc. (Defendant). Plaintiff alleges he contracted a stomach flu after eating at one of Defendant’s restaurants on March 24, 2023. Plaintiff claims to have lost work from said stomach flu.

Plaintiff’s First Amended Complaint (FAC) states causes of action for (1) Negligence, (2) Products Liability, (3) Violations of Business and Professions Code Sections 17200 and 17500, and (4) Negligent Misrepresentation.

Defendant now demurs to the third cause of action on grounds that it is uncertain and lacks sufficient facts to state a claim. Plaintiff has not opposed the demurrer.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MERITS

First the Court notes there is no opposition to this motion.  Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c).  Nonetheless the Court will provide some analysis.

Meet and Confer

C.C.P. § 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Thoma Decl. ¶¶ 2-6.)

Third COA - Violations of Business and Professions Code §§ 17200 & 17500 – Sustained Without Leave to Amend

Plaintiff first demurs to the third cause of action on grounds that the pleadings are uncertain. Plaintiff argues that despite the caption of the action stating a violation of § 17200, the substance of the cause of action only alleges a violation of § 17500.

Uncertainty is defined as that which is ambiguous and unintelligible. (C.C.P. § 430.10.) A demurrer for uncertainty should be granted “if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Further, a complaint must “set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.)

Upon review, the Court finds that the FAC is indeed uncertain to this cause of action. No mention of § 17200 is made whatsoever in the substance of Plaintiff’s FAC. It is unclear what, if any, violation of § 17200 Plaintiff alleges to have occurred in this case.

Plaintiff also demurs to this cause of action for failure to allege sufficient facts. Plaintiff argues that the FAC is entirely devoid of facts pertaining to a violation of the false advertising provisions of § 17500.

Business and Professions Code § 17500 provides that it is unlawful for a person or corporation to disseminate false or misleading advertisements for sale of property or services. To state a claim for false advertising under § 17500, the advertisement must be either false or, while true, "actually misleading" or having "a capacity, likelihood, or tendency to deceive or confuse the public." (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951.) The "reasonable consumer" test applies to false advertising claims. (Salazar v. Target Corporation (2022) 83 Cal.App.5th 571, 578.) "Whether a reasonable consumer is deceived by that advertising is not properly resolved at the pleading stage." (Salazar, supra 83 Cal.App.5th at 584.)

Here Plaintiff’s only allegation as to § 17500 is that “Defendants failed to abide by this section as they served food that was unfit for consumption.” (FAC ¶ 16.) The Court finds these allegations are insufficient. Plaintiff has not alleged the existence of any advertisement by Defendant, much less one that was allegedly misleading to members of the public.

In short, the Court finds the allegations in the FAC regarding the third cause of action are both uncertain and factually insufficient. Accordingly, the demurrer to the third cause of action is SUSTAINED without leave to amend. Leave to amend is denied on two grounds. First, the demurrer is unopposed which may be construed as Plaintiff’s abandonment of this claim. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Second, Plaintiff bears the burden to identify facts which could cure the defects raised in demurrer. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150.) As Plaintiff has failed to oppose this demurrer, so to has he failed to carry his burden of showing facts requisite to leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Panda Express Inc.’s Demurrer came on regularly for hearing on September 20, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE THIRD CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.  

IT IS SO ORDERED. 

DATE: September 20, 2024                           _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles