Judge Lee S. Arian, Case Number: 23STCV00903, Date: 2023-12-13 Tentative Ruling

MOVING PARTY: Defendants Ethos dba Romancing D’West, Romancing D’West Inc., and Maryam Manzoori Fard (“Defendants”)

This is an action arising from a slip and fall in which Plaintiff alleges that he tripped over an unmarked clothing mannequin in front of 916 Santee Street, Los Angeles, CA 90015 (the “Premises”).

On January 17, 2023, Plaintiff Gabriel Arellano (“Plaintiff”) filed a complaint against Defendants Ethos dba Romancing D’West, Romancing D’West, Maryam Manzoori Fard (“Fard”), and Does 1 to 20 (collectively, “Defendants”) alleging causes of action for: (1) General Negligence; and (2) Premises Liability.

On July 14, 2023, Defendants filed a demurrer and motion to strike as to the complaint, both of which were set for hearing on August 14, 2023.

On July 31, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of action for: (1) Negligence; (2) Premises Liability; and (3) Alter Ego Doctrine.

On September 1, 2023, Defendants filed and served a demurrer to the first, second, and third causes of action in the FAC, as well as a motion to strike portions of the FAC. On November 30, 2023, Plaintiff filed an opposition to the demurrer and motion to strike. No reply brief was filed. Any reply brief was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd.(b).)

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) “[A] demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact.” (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

The meet and confer requirement has not been met. Counsel for Defendants only sent a letter to Plaintiff’s counsel outlining the purported deficiencies in the FAC and did not meet in person or by telephone. (Avellaneda Decl., ¶ 3 and Exhibit A.) Plaintiff’s counsel then informed Defendants’ counsel via e-mail that Plaintiff would not amend the FAC. (Id., ¶ 4 and Exhibit B.) The Court will still assess the demurrer on its merits; however, the Court reminds the parties to comply with the requirements of the Code of Civil Procedure.

Defendants contend that the first cause of action fails because Plaintiff has failed to allege that a breach of a duty to exercise ordinary care was a substantial factor in bringing about Plaintiff’s harm. Plaintiff asserts that the first cause of action is sufficiently alleged.

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “A plaintiff meets the causation element by showing that (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the defendant of liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Ibid.)

The Court finds that Plaintiff’s cause of action for negligence is sufficiently alleged. (FAC, ¶¶ 12-18, 21-29.) In particular, Plaintiff has sufficiently alleged that Defendants’ conduct was a substantial factor in causing Plaintiff’s harm. (Id.)

The Court therefore OVERRULES the demurrer of Defendants to the first cause of action in the FAC.

Defendants contend that Plaintiff has failed to sufficiently allege causation. Defendants also contend that the Plaintiff has failed to plead any facts showing that Defendants had the required level of notice to support any breach of a duty owed and, therefore, the second cause of action fails.

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “Courts have . . . held that where the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ortega v. Kmart Corp., supra, 26 Cal.4th 1200, 1206.)

The Court finds that the second cause of action for premises liability is sufficiently alleged. Plaintiff has alleged the elements of breach, duty, and causation. (FAC, ¶¶ 12-18, 30-36.) Pursuant to the second cause of action, Plaintiff has specifically alleged that Defendants’ breach of their duty “was a substantial factor in causing Plaintiff’s harm.” (Id., ¶ 34.) Thus, the Court finds that Plaintiff has sufficiently alleged causation as to the second cause of action.

The Court also rejects Defendants’ argument that Plaintiff has failed to plead facts showing that Defendants had the required level of notice. The FAC specifically alleges that “Defendants breached their duty of care by allowing and creating a dangerous condition, specifically, an unmarked clothing mannequin on the ground blocking the sidewalk/walking area in front of the Premises that created a reasonably foreseeable trip hazard for their guests and invitees.” (Id., ¶ 32.) Plaintiff “alleges that Defendants had actual and/or constructive notice of the trip hazard.” (Id.) Plaintiff alleges that he “was harmed by the dangerous trip hazard created by the unmarked clothing mannequin on the ground blocking the sidewalk/walkway area in front of the Premises.” (Id., ¶ 33.) Thus, the Court finds that Plaintiff has sufficiently alleged that Defendants had actual and constructive notice of the alleged trip hazard.

While Defendants contend that Plaintiff failed to engage in communication with any agents of Defendants after the alleged fall, and there are no allegations that Plaintiff called 911 after the alleged fall, Defendants cite to no legal authority to support the argument that such omissions lead to a finding of no actual or constructive notice.

The Court therefore OVERRULES the demurrer of Defendants to the second cause of action in the FAC.

Defendants contend that the third cause of action does not state a claim of liability against Defendant Fard.[1] Plaintiff contends that he has sufficiently pleaded alter ego allegations against Defendant Fard.

“A claim against a defendant, based on the alter ego theory, is not a claim for substantive relief, e.g., breach of contract or to set aside a fraudulent conveyance, but rather, procedural, i.e., to disregard the corporate entity as a distinct defendant and to hold the alter ego individuals liable on the obligations of the corporation where the corporate form is being used by the individuals to escape personal liability, sanction a fraud, or promote injustice.” (Hennessey’s Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359.) “Piercing the corporate veil is not itself an independent . . . cause of action, but rather is a means of imposing liability on an underlying cause of action.” (Peacock v. Thomas (1996) 516 U.S. 349, 354.)

Although not raised as an argument in the moving papers, the Court finds that Plaintiff’s third cause of action for Alter Ego Doctrine is improper. Alter ego is not an independent cause of action under Peacock v. Thomas, supra, 516 U.S. 349 and Hennessey’s Tavern, Inc. v. American Air Filter Co., supra, 204 Cal.App.3d 1351.

Even if alter ego were a standalone cause of action, the allegations of the third cause of action would be insufficient as currently alleged because they are much too conclusory. (FAC, ¶¶ 40-41.) Pursuant to the third cause of action, Plaintiff has failed to allege specific facts that “the organization of the corporation is in some manner fraudulent or prompted by dishonesty, or that the corporation committed or intended to commit a fraud, or that injustice will be done if the corporate entity is not disregarded.” (Judelson v. American Metal Bearing Co. (1948) 89 Cal.App.2d 256, 263.)

The Court therefore SUSTAINS the demurrer of Defendants to the third cause of action in the FAC without leave to amend as Alter Ego Doctrine is not a standalone cause of action.

“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).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) A court may “[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.” (Code Civ. Proc., § 436, subd. (b).)

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a)(4).)

The meet and confer requirement has not been met. Counsel for Defendants only sent a letter to Plaintiff’s counsel outlining the purported deficiencies in the FAC and did not meet in person or by telephone. (Avellaneda Decl., ¶ 3 and Exhibit A.) Plaintiff’s counsel then informed Defendants’ counsel via e-mail that Plaintiff would not amend the FAC. (Id., ¶ 4 and Exhibit B.) The Court will still assess the motion to strike on its merits; however, the Court reminds the parties to comply with the requirements of the Code of Civil Procedure.

Defendants seek to strike alter ego allegations from the FAC. Plaintiff contends that he has properly pleaded alter ego against Defendant Fard.

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, Rule 3.1322, subd. (a).)

Defendants’ notice of motion states that Defendants are seeking “an order striking portions of the First Amended Complaint . . . wherein it alleges [Defendant] Fard is personally liable for a fall that allegedly occurred outside Ethos’ store which [Defendant] Fard partially owns. Defendants move to strike it from the entirety of the complaint.” (Motion to Strike at 1:28-2:4.)

The Court assumes that Defendants are moving to strike the entire third cause of action from the FAC. In the opposition to the Motion to Strike, Plaintiff does not allege that the motion is procedurally improper and argues that he has adequately alleged an alter ego theory against Defendant Fard.

Due to the Court sustaining the demurrer to the third cause of action in the FAC without leave to amend as indicated above on the grounds that Alter Ego Doctrine is not an independent cause of action, the Court GRANTS the Motion to Strike with 20 days leave to amend.

The Court OVERRULES the demurrer of Defendants to the first and second causes of action in the FAC.

The Court SUSTAINS the demurrer of Defendants to the third cause of action in the FAC without leave to amend.

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. Lee S. Arian

Judge of the Superior Court

[1] The third cause of action in the FAC is alleged against only Defendant Fard, Does 6 to 10, and Does 16 to 20.