Judge Lee W. Tsao, Case Number: 22NWCV01729, Date: 2023-08-08 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01729, Date: 2023-08-08 Tentative Ruling

Case Number: 22NWCV01729 Hearing Date: August 8, 2023 Dept: C

AYALA v. WALMART INC., et al.

CASE NO.: 22NWCV01729

HEARING: 8/8/23

TENTATIVE RULING

Defendant Walmart Inc.’s demurrer to plaintiff’s complaint is OVERRULED. Defendant is ordered to filed its Answer within 10 days.

Opposing party to give NOTICE.

Defendant Walmart Inc. demurs to the 3^rd cause of action on the ground that it fails to state facts sufficient to constitute a cause of action.

Complaint

“On or about March 8, 2021, Plaintiff [Gabriela Ayala] was lawfully on Defendants’ premises located at 12270 Paramount Blvd., Downey, CA 90242, for the mutual benefit of Plaintiff and the Defendants. At such time and place, Defendants allowed a dangerous condition, which created a slip hazard, to remain on their property resulting in injury to Plaintiff. Additionally, Defendant, WALMART INC.’s employees had been negligently trained, managed, retained and supervised contributing to the cause of the subject accident.” (Complaint, ¶ 7.) Based thereon, the Complaint asserts causes of action for:

1. Negligence

2. Premises Liability

3. Unfair Business Practices § 17200

3^rd CAUSE OF ACTION

UNFAIR BUSINESS PRACTICE: The Unfair Business Practices Act shall include “any unlawful, unfair or fraudulent business act or practice.” (B&P Code § 17200.) A plaintiff alleging unfair business practices under these statutes 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.) Even a single incident - a one-time act that is unfair, unlawful or fraudulent - is sufficient to state a claim under 17200. (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969 fn. 3.)

The "unfair" component, the second prong of section 17200, provides an independent basis for relief under the UCL. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 718.) A business practice need not be "unlawful" in order for it to be deemed "unfair." (Id. at 718, 720.)

Plaintiff alleges that defendant committed an unfair business practice by failing to preserve video surveillance recordings. (Complaint ¶¶36 -42)

Although California does not recognize a cause of action for intentional spoliation of evidence (CedarsSinai Medical Center v. Superior Court (1998) 18 Cal.4th 1), the "unfair" standard is intentionally broad. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 718.) Unlike the "unlawfulness" prong, "unfairness" is an equitable concept that cannot be mechanistically determined on demurrer. (Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167.) "What constitutes unfair competition or unfair or fraudulent business practice under any given set of circumstances is a question of fact." (Id.) A business practice is unfair when it “is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers and requires the court to weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim. (Bardin v. Daimlerchrysler Corp. (2006) 136 Cal.App.4th 1255, 1260; Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1498.)

At this pleading stage, the court will allow the “unfair” business claim to stand. Demurrer is OVERRULED.