Judge Kerry Bensinger, Case 22STCV17691 2023-02-22 Tentative Ruling

On May 31, 2022, plaintiff Paul Hopkins (“Plaintiff”) filed this action against defendants for (1) dangerous condition of public property, (2) negligence, and (3) premises liability. Plaintiff alleges he fell from his bicycle due to a dangerous condition on a sidewalk.

On December 19, 2022, Defendant Villa Romano Homeowners Association (“Defendant”) filed the instant unopposed demurrer and motion to strike portions of the Complaint.

“A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) Defense counsel declares that they attempted to meet and confer with Plaintiff, but despite efforts, the parties were unable to reach a resolution. (Pole Decl., ¶4.) This is sufficient to satisfy the meet and confer requirement.

Defendant demurs to the Complaint on the ground that Plaintiff fails to plead alter ego liability. However, the only claims alleged against moving Defendant are the causes of action for negligence and premises liability, which base Defendant’s liability on all Defendants being owners and/or managers and/or controllers of the subject premises. Accordingly, without explanation as to how the alter ego and joint venture theories are integral to these claims, the demurrer is OVERRULED.

Defendant moves to strike (1) the prayer for attorney fees, and (2) the allegations in Paragraph 12 pertaining to joint venturers and alter ego status.

Defendant argues that Plaintiff improperly seeks attorney’s fees and moves to strike all references.

“California follows the ‘American rule,’ under which each party to a lawsuit must pay its own attorney fees unless a contract or statute or other law authorizes a fee award.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237; Code of Civ. Proc. § 1021.)

Plaintiff has failed to plead a statute or agreement entitling him to attorney’s fees in the complaint. Accordingly, Plaintiff fails to plead a basis for attorney’s fees.

Defendant argues that Plaintiff improperly seeks to impose liability based on alter ego and joint venture liability and moves to strike all references. Specifically, Defendant argues that Plaintiff has failed to plead sufficient facts to impose this liability.

In Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36, the Court of Appeal held the following was sufficient to allege alter ego liability:

Rutherford alleged that Caswell dominated and controlled PDR; that a unity of interest and ownership existed between Caswell and PDR; that PDR was a mere shell and conduit for Caswell's affairs; that PDR was inadequately capitalized; that PDR failed to abide by the formalities of corporate existence; that Caswell used PDR assets as her own; and that recognizing the separate existence of PDR would promote injustice. These allegations mirror those held to pass muster in First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915–916, 73 Cal.Rptr. 657. As in First Western, “[a]ssuming these facts can be proved, [Caswell] ... may be held liable ... under the alter ego principle.” (Id. at p. 916, 73 Cal.Rptr. 657.)

Defendants argue that Rutherford failed to allege specific facts to support an alter ego theory, but Rutherford was required to allege only “ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, 67 Cal.Rptr.3d 330, 169 P.3d 559.) Moreover, the “less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff,” which certainly is the case here. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474, 20 Cal.Rptr. 609, 370 P.2d 313.) Therefore, we affirm the trial court's ruling that Rutherford sufficiently pled an alter ego theory of liability.

Here, the Complaint merely alleges that “Plaintiff is informed and believes, and based thereon alleges, that at all times relevant hereto, Defendants, and each of them, inclusive of the VILLA DEFENDANTS, were the employees, managing agents, supervisors, coconspirators, subsidiaries, parent company, parent corporation, joint employer, joint venturers, co-owners, co-managers and/or alter ego of the other Defendants, and each of them.” (Complaint, ¶12.) Accordingly, this conclusory statement is insufficient to allege alter ego liability.

“There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise.” (Orosco v. Sun Diamond Corp. (1997) 51 Cal.App.4th 1659, 1666.)

As with the alter ego allegations, Plaintiff merely alleges that Defendants are joint venturers of each other. (Complaint, ¶12.) Accordingly, the conclusory allegations are insufficient to plead this liability.

Defendant’s motion to strike is GRANTED with leave to amend. Plaintiff has 30 days from the date of this order to file an amended complaint.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court