Judge: Frank M. Tavelman, Case: 24NNCV03603, Date: 2024-12-20 Tentative Ruling
Case Number: 24NNCV03603 Hearing Date: December 20, 2024 Dept: A
DEMURRER
& MOTION TO STRIKE
Los Angeles Superior Court
Case # 24NNCV03603
|
MP: |
Burlington Coat Factory of Texas,
Inc. (Defendant) |
|
RP: |
Alica Reznic-Alihanjan (Plaintiff) |
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:
Alica
Reznic-Alihanjan (Plaintiff) brings this action against Burlington Coat Factory
of Texas, Inc. (Defendant). Plaintiff alleges that on August 21, 2023, she was
shopping at a store owned by Defendant. (Compl. ¶ 21.) Plaintiff alleges
that she tripped on a shelf which was placed outside of its designated area and
was severely injured as a result. (Compl. ¶ 22.) Plaintiff’s Complaint
states causes of action for (1) Premises Liability, (2) Negligence, (3)
Negligent Hiring/Retention and Failure to Warn, and (4) Gross Negligence.
Defendant now demurs
to the fourth cause of action in the Complaint on grounds that it is not a
legally cognizable cause of action. Defendant further demurs to the cause of
action on grounds that it is unsupported by sufficient factual allegations. Defendant
also moves to strike Plaintiff’s request for punitive damages, located at
paragraph 3 in her Prayer for Relief. Plaintiff opposes the demurrer and motion
to strike. Defendant replies.
ANALYSIS:
I.
LEGAL
STANDARD
Demurrer
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.)
Motion to
Strike
Motions to
strike are used to reach defects or objections to pleadings that are not
challengeable by demurrer, such as words, phrases, and prayers for damages.
(See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false
allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting
a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion
made pursuant to Section 435 [notice of motion to strike whole or part of
complaint], or at any time in its discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any
pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations
that are not essential to the claim or those not pertinent to or supported by
an otherwise sufficient claim. (C.C.P. § 431.10.)
The court may
also “[s]trike out 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.” (C.C.P. § 436 (b).)
II.
MERITS
Meet and Confer
C.C.P. §§ 430.41(a)
and 435.5(a) requires that the moving party meet and confer with the party who
filed the pleading that is subject to the demurrer and/or motion to strike. Upon
review the Court finds the meet and confer requirements were met here. (English
Decl. ¶¶ 3-4.)
Discussion
Fourth Cause of Action – Gross Negligence – Sustained with
Leave to Amend
Defendant demurs to this cause of action on grounds that
“gross negligence” is not a legally cognizable cause of action in the State of
California. Defendant argues that allegations of gross negligence may be
properly leveled as part and parcel of a negligence cause of action, but they
do not constitute a separate cause of action. The Court agrees.
California does not recognize a distinct common law cause
of action for gross negligence apart from negligence. (See Jimenez v. 24
Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3; Chavez v.
24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640; Eriksson v.
Nunnink (2011) 191 Cal.App.4th 826, 856, fn. 18 ["In reality,
California does not recognize a distinct cause of action for ‘gross negligence'
independent of a statutory basis"].)
Numerous cases discuss the doctrine of gross negligence;
however, these cases have invariably involved a statute containing the words
"gross negligence" in the text. (Cont'l Ins. Co. v. Am. Prot.
Indus. (1987) 197 Cal.App.3d 322, 329.) Rather, as a degree of negligence,
"[g]ross negligence is pleaded by alleging the traditional elements of
negligence: duty, breach, causation, and damages." (Rosencrans v. Dover
Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.) Thus, while gross
negligence allegations may be appropriate within a cause of action for
negligence, a separate cause of action for gross negligence is not. (See Jimenez,
supra, 237 Cal.App.4th at p. 552, fn. 3 [referring to gross negligence as a
"degree of negligence"].) Put more succinctly, "Gross negligence
is a subspecies of negligence; it is not a separate tort.” (Joshi v. Fitness
Int'l, LLC (2022) 80 Cal.App.5th 814, 825.)
Here, no statutory basis has been alleged to support the
existence of a separate cause of action for gross negligence. Nor has Plaintiff
argued that any exists. Accordingly, the demurrer to the fourth cause of action
is SUSTAINED with leave to amend.
The Court notes that its ruling on this demurrer does not
bar Plaintiff from including allegations of gross negligence in their cause of
action for ordinary negligence upon amendment. While it appears that there is
no reasonable possibility that Plaintiff could amend the Complaint to state a
cognizable cause of action for gross negligence, she is still permitted to
include allegations of gross negligence under her second cause of action. As
such, the Court will briefly address Defendant’s argument that the Complaint
falls short of the pleading requirements for gross negligence.
“Gross negligence is pleaded by alleging the traditional
elements of negligence: duty, breach, causation, and damages.” (Rosencrans,
supra, 192 Cal.App.4th at 1082, citing Jones v. Wells Fargo Bank
(2003) 112 Cal.App.4th 1527, 1541.) “However, to set forth a claim for ‘gross
negligence’ the plaintiff must allege extreme conduct on the part of the
defendant. (Id., citing Eastburn v. Regional Fire Protection
Authority (2003) 31 Cal.4th 1175, 1185–1186.) “The conduct alleged must
rise to the level of either a want of even scant care or an extreme departure
from the ordinary standard of conduct.” (Id., citing City of Santa
Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.)
The above case law indicates that to properly plead gross
negligence, Plaintiff must allege conduct which is extreme and demonstrates a
major departure from the ordinary standard of care. While cases have opined on
these pleading requirements, they have provided no identifiable standard by
which they can be judged on demurrer. For example, in Eastburn v. Regional
Fire Protection Authority, the California Supreme Court upheld a demurrer
to allegations of gross negligence without leave to amend. The court found, “Plaintiffs have failed to plead facts
disclosing any acts of gross negligence or bad faith on the part of defendants
or their employees, and they presently assert no additional facts that might
justify an amended complaint.” (Eastburn, supra, 31
Cal.4th as 1179.) Despite this holding, the court provided no insight as to how
this determination was reached. (Id.)
This difficulty is compounded by the fact that courts have
held gross negligence to generally be a question of fact, indicating the
sufficiency of these allegations is not resolvable upon demurrer. (See Brown
v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1028.)
Here, Plaintiff’s allegations speaking to gross negligence
are identical to her allegations of ordinary negligence. At first glance this
indicates that these allegations are insufficient, as they state no separate
facts which push Defendant’s actions beyond those of ordinary negligence.
Regardless, to conclude at the pleading stage that the alleged actions could
never support a claim of gross negligence would appear to be a premature
determination of a factual issue. As such, Plaintiffs are not precluded from
including allegations of gross negligence upon amendment provided they are not
pleaded as a separate cause of action.
In summary, the demurrer to the fourth cause of action is
SUSTAINED with 20 days’ leave to amend. Leave to amend is granted insofar as
Plaintiff may wish to incorporate allegations of gross negligence in her second
cause of action. This grant of leave does not permit Plaintiff to restate her
separate cause of action for gross negligence.
Motion to Strike
"In order to survive a motion to strike an allegation
of punitive damages, the ultimate facts showing an entitlement to such relief
must be pled by a plaintiff. In passing on the correctness of a ruling on a
motion to strike, judges read allegations of a pleading subject to a motion to
strike as a whole, all parts in their context, and assume their truth." (Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (internal citations
omitted).) To state a prima facie claim for punitive damages, a plaintiff must
allege the elements set forth in the punitive damages statute, Civil Code §
3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)
Per Civil Code § 3294(a), a plaintiff must allege that the defendant has been
guilty of oppression, fraud, or malice.
Here, Plaintiff’s allegations in support of her claim for
punitive damages are predicated entirely on her claim of negligence. Plaintiff
argues her claim that Defendant negligently placed a shelf in the path of
shoppers is sufficient to constitute malice. The Court finds this argument
unpersuasive.
"Inasmuch as Civil Code Section 3294 requires as a
prerequisite to the recovery of punitive damages that the defendant 'has been
guilty of oppression, fraud, or malice,' the cases have uniformly recognized
that proof of negligence, even gross negligence, or recklessness is
insufficient to warrant an award of punitive damages" (Dawes v.
Superior Court (1980) 111 Cal.App.3d 82, 87.) Non-intentional conduct can
only support a punitive damage award if the defendant intentionally performs an
act, and that act is of such severity and shocking character that it warrants
the same treatment as that accorded willful misconduct. (Nolin v. National
Convenience Stores, Inc. (1979) 95 Cal.App.3d 279.)
Plaintiff has alleged no facts beyond those stating
non-intentional conduct. Plaintiff’s allegation that Defendant negligently
placed a shelf in the path of shoppers does not appear to rise to the level of
severity sufficient to support a claim for punitive damages. Nor has Plaintiff
demonstrated in opposition that any amendment could cure this deficiency.
Accordingly, the motion to strike punitive damages is GRANTED without leave to
amend.
---
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
Burlington Coat
Factory of Texas, Inc.’s Demurrer and Motion to Strike
came on regularly for hearing on December 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 FOURTH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.
THE
MOTION TO STRIKE PUNITIVE DAMAGES IS GRANTED WITHOUT LEAVE TO AMEND.
DEFENDANT
TO GIVE NOTICE.
IT IS SO
ORDERED.
DATE:
December 20, 2024 _______________________________
F.M.
TAVELMAN, Judge
Superior Court of California
County of
Los Angeles