Department 30, Spring Street Courthouse

August 17, 2022

22STCV16449

Demurrer filed by Defendant Platinum Banquet Hall & Auditorium, Inc. as to Count Two (willful failure to warn) and Count Three (dangerous condition of public property. 

The demurrer is sustained with leave to amend as to the willful failure to warn.

The demurrer is sustained without leave to amend as to a dangerous condition of public property.

If Plaintiff wished to file an amended complaint, Plaintiff is ordered to do so within 30 days after the date of this order.

Defendant must file its answer or other responsive pleading within 30 days after service of the first amended complaint.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order. 

This is an action for premises liability, including negligence, dangerous condition of public property, and willful failure to warn; and general negligence. Plaintiff Vivian Bautista filed her Complaint against Platinum Banquet Hall & Auditorium, Inc. on May 17, 2022. Plaintiff alleges she suffered injuries after slipping and falling on Defendant’s premises

On July 20, 2022, Defendant filed the instant demurrer. 

Defendant demurs to Plaintiff’s claims for failure to warn and dangerous condition of public property on the grounds that the Complaint fails to allege facts to support a claim for willful failure to warn and that Defendant is not a public entity. 

Plaintiff requests that the Court grant leave to amend to cure the defects that exist throughout the Complaint, including her second cause of action for General Negligence.

Defendant on reply reiterates its arguments about Plaintiff’s causes of action for willful failure to warn and dangerous condition on public property.

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.) 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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 p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Defendant demurs on Plaintiff’s causes of action for willful failure to warn and dangerous condition of public property.

This count is based¿on Civil Code section¿846,¿under which¿a landowner owes no duty to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for a recreational purpose, unless the landowner willfully or maliciously fails to guard or warn against the dangerous condition, use, structure, or activity.¿Civil Code section¿846¿defines a recreational purpose to include “activities such as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.” (Civ. Code § 846(b).)¿¿ 

 

Since this is a statutory claim, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation.¿(Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619.) 

Here, the Complaint alleges that Defendant “willfully or maliciously failed to guard or warn against a dangerous condition, use structure or activity,” but fails to identify the names of the defendant owners in Prem. L-3. The Complaint also states:

“At said time and place, the Defendants and each of them negligently and carelessly owned, maintained, controlled, inspected, operated, managed, cleaned and repaired their premises located at 8704 Van Nuys Blvd., Panorama City, CA 91402, so as to maintain dirty, wet, damaged, slippery floors in an area on the premises and thereby creating a dangerous condition on their premises. Plaintiff, a consumer on Defendant’s premises, tripped and fell on said dangerous condition, severely injuring herself.” 

(Compl., p.1.) These facts do not describe whether Plaintiff was on Defendant’s premises for a recreational purpose. The Complaint does not offer any facts describing why Plaintiff was on the premises. Additionally, the Complaint does not describe any conduct on Defendant’s part that would show a willful or malicious failure to guard or warn against the dangerous condition, use, structure, or activity. The Complaint does not name the Defendant owners allegedly responsible for the failure to warn. Thus, the Complaint does not allege sufficient facts to show that Defendant is liable under Civil Code section¿846¿for willfully or maliciously failing to warn Plaintiff when Plaintiff entered the Premises for a recreational purpose.¿ The demurrer is sustained as to this cause of action.

Defendant also argues that its demurrer should be granted as to Plaintiff’s cause of action for Dangerous Conditions on Public Property because it is not a government entity.

Government Code section 835 states:¿“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: 

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿ 

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”¿ 

Here, Defendant is not a public entity, but a private corporation providing services as a banquet hall and auditorium. Defendant cannot be held liable for Dangerous Conditions of Public Property.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

Plaintiff fails to show how she could amend the Complaint to state a cause of action for Dangerous Condition on Public Property against Defendant because Defendant is not a public entity. No amendment will cure this deficiency. Thus, leave to amend is not appropriate.  

The demurrer is sustained with leave to amend as to Plaintiff’s cause of action for willful failure to warn.

Plaintiff also requests leave to amend her cause of action for general negligence. However, that cause of action is not at issue in Defendant’s demurrer. Plaintiff has not described the effects of her planned amendment. Thus, the Court cannot grant Plaintiff’s request at this point. Plaintiff must file a motion for leave to amend the cause of action for general negligence.