Judge Katherine Chilton, Case 21STLC08905 2022-09-27 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC08905, Date: 2022-09-27 Tentative Ruling

Case Number: 21STLC08905 Hearing Date: September 27, 2022 Dept: 25

PROCEEDINGS: DEMURRER

MOVING PARTY: Defendant Los Angeles World Airports (“LAWA”)

RESP. PARTY: Plaintiff Danny Haloossim

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

The hearing on Defendant Los Angeles World Airports’ Demurrer is CONTINUED to NOVEMBER 10, 2022 at 10:30 AM in Department 25 at Spring Street Courthouse. Plaintiff is ordered to file his Opposition to the Demurrer with the Court at least nine (9) court days before the next scheduled hearing.

SERVICE:

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[ X ] Correct Address (CCP §§ 1013, 1013a) OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of September 26, 2022. [ ] Late [X] None

REPLY: Filed on September 20, 2022. [ ] Late [ ] None

ANALYSIS:

I. Background

On December 16, 2021, Plaintiff Danny Haloossim (“Plaintiff”) filed an action against Defendants Los Angeles World Airports (“LAWA”) and Transportation Security Administration (“TSA”) for general negligence and premises liability.

On August 25, 2022, Defendant LAWA filed the instant Demurrer to Plaintiff’s Complaint. No opposition was filed with the Court, but on September 20, 2022, Defendant LAWA filed a Reply.

II. Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party 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(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

III. Discussion

A. Meet and Confer Requirement

Defense counsel David L. Brandon submitted a declaration stating that on April 5, 2022, his office sent a meet and confer email to Plaintiff’s counsel regarding a potential demurrer. (Brandon Decl. ¶ 3; Ex. A.) Attorneys for Plaintiff and Defendant LAWA exchanged emails on the subject but were unable to reach an agreement. (Ibid.)

The Court finds the declaration sufficient to satisfy the meet and confer requirement.

B. General Negligence and Premises Liability

a. Plaintiff’s Complaint

Plaintiff has filed a Form Complaint against Defendants LAWA and TSA for general negligence and premises liability. The allegations for both causes of action are nearly identical and state the following:

On or around December 18, 2019, Plaintiff Daniel Haloossim and his family were waiting to pass security and walk towards their identified gate. While in line with the Transportation Security Adminstration [sic] ("TSA") Plaintiff was instructed to remove his shoes and walk through the metal dector [sic] machine. Plainitff [sic] removed his shoes as instruted [sic], and was in socks on a marble-like floor, with no pads or rubber mats around. As Plaintiff walked through with his socks he slipped on the marble-like floor and feel [sic] down to the ground, suffering injuries to his right knee, including a "cracking noise left knee sprain, and lumbar spine sprain. Due to LAX and TSA's failure to have rubber mat [sic] or surface that would not make the Plaintiff slip with his socks on, Plaintiff suffered the aforementioned injuries. Thankfully, Plainitft's [sic] family members and an unknown TSA employee assisted Plaintiff after suffering injuries.

(Compl. pp. 4-5, GN-1, Prem.L-1.)

b. Defendant’s Demurrer

Defendant demurs to the Complaint’s causes of action for general negligence and premises liability for failure to state facts sufficient to constitute a cause of action against LAWA “as there are no allegations of a dangerous condition as a matter of law” and requests that the Court sustain the demurrer without leave to amend. (Demurrer pp. 3-4.)

Defendant concurrently discusses its basis for demurring to the general negligence and premises liability causes of action. Defendant argues that pursuant to Government Code § 815, “a public entity such as LAWA is liable only to the extent provided by statute.” (Mot. pp. 5-6.) A public entity may be liable for injuries only when caused by a dangerous condition on public property. (Ibid., citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) Defendant argues that Plaintiff must establish that:

1. The property was in a dangerous condition;

2. The dangerous condition was the proximate cause of plaintiff's injury;

3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; 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 for a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Ibid. at pp. 6-7, citing Gov. Code § 835.) Furthermore, § 835 defines a “dangerous condition” as "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Ibid., citing Gov. Code § 830.)

Defendant argues that Plaintiff fails to allege facts showing that a “dangerous condition” existed as he only alleges that he fell on a “marble-like” floor that did not have a rubber mat. (Ibid. at p. 7.) Plaintiff does not “allege that the ‘marble-like’ floor was damaged or uneven or in some condition other than the existence of the floor” or “that there was any substance on the ‘marble-like’ floor, such as wax, or water, or grease, that made the floor slippery.” (Ibid. at p. 4, 7.) Defendant states that in similar cases in California, courts have found the existence of a dangerous condition when there was a physical deficiency in the property itself or a foreign substance on the floor and defendant either created this condition or knew or should have known about it. (Ibid. at p. 8.). Defendant argues that “Plaintiff has not alleged that the floor was slippery at all” and merely states that “he fell while wearing socks.” (Ibid. at p. 9.)

Furthermore, Defendant argues that there is no reasonable possibility that Plaintiff can amend the Complaint to state facts showing that a dangerous condition existed. (Ibid. at pp. 6, 9-10.) First, Plaintiff has alleged liability under common law instead of Government Code § 835. (Ibid. at p. 9.) Second, even if Plaintiff asserts liability under § 835, he will have to make “brand new allegations” showing that the “marble-like” floor was damaged or covered in a foreign substance. (Ibid. at pp. 9-10.) Third, leave to amend should be denied in cases where the facts are not in dispute but do not give rise to liability exists under substantive law. (Ibid. at p. 10, citing Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)

c. Plaintiff’s Opposition to Demurrer

On September 20, 2022, Defendant LAWA filed a Reply to Plaintiff’s Opposition. However, no opposition has been filed with the Court. Plaintiff is ordered to file the opposition at least nine (9) court days before the next scheduled hearing.

d. Defendant’s Reply to Opposition to Demurrer

On September 20, 2022, Defendant LAWA filed a Reply to Defendant’s Opposition to the Demurrer. The Court will address the arguments in the Reply at the next scheduled hearing, after reviewing Plaintiff’s Opposition to the Demurrer.

e. Analysis

Given that Plaintiff’s Opposition has not been filed with the Court, the hearing on the Demurrer is continued and Plaintiff is ordered to file the Opposition at least nine (9) court days before the next scheduled hearing.

C. Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

Given that the hearing on the Demurrer is continued, the Court will determine whether it is necessary to grant leave to amend after ruling on the Demurrer at the next scheduled hearing.

IV. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.