Judge: Lisa R. Jaskol, Case: 22STCV23564, Date: 2023-12-14 Tentative Ruling

Case Number: 22STCV23564    Hearing Date: March 15, 2024    Dept: 28

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND 

On July 20, 2022, Plaintiff Richard Friedman (“Plaintiff”) filed this action against Defendants Westlake Village Athletic Club, LP, dba Westlake Athletic Club (“Defendant”) and Does 1-50 for general negligence and premises liability. 

On October 3, 2022, Defendant filed an answer. 

On November 20, 2023, the Court found that this case (case number 22STCV23564) and case number 23VECV03754 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 22STCV23564 became the lead case. The cases were assigned to Department 28 in the Spring Street Courthouse for all purposes. 

On December 15, 2023, Plaintiff filed a first amended complaint against Defendant and Does 1-50 for gross negligence. 

On January 12, 2024, the Court (1) granted the parties’ stipulated request to consolidate this case (case number 22STCV23564) and case number 23VECV03754, (2) consolidated the cases, and (3) assigned them to Department 28 in the Spring Street Courthouse for all purposes. Case number 22STCV23564 remained the lead case. 

On January 17, 2024, Defendant filed a demurrer to be heard on February 16, 2024. On January 31, 2024, Plaintiff filed an opposition. On February 8, 2024, Defendant filed a reply. The Court continued the hearing to March 15, 2024. 

Trial is scheduled for August 28, 2024. 

PARTIES’ REQUESTS 

Defendant asks the Court to sustain the demurrer without leave to amend. 

Plaintiff asks the Court to overrule the demurrer or to grant leave to amend. 

LEGAL STANDARD 

A.   Demurrer 

Code of Civil Procedure section 430.10 provides in part: 

* * *

“(e) The pleading does not state facts sufficient to constitute a cause of action

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. . . .” 

(Code Civ. Proc., § 430.10, subds. (e), (f).) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.) 

B.   Gross negligence 

“[O]rdinary negligence ‘consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.’ ”  (Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867, 881, quoting City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (Santa Barbara).)  “ ‘ “[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,” ’ amounts to ordinary negligence.” (Ibid., quoting Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48.)  “However, to support a theory of ‘ “[g]ross negligence,” ’ a plaintiff must allege facts showing ‘either a “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’ ” [Citations.]’ ” (Ibid., quoting Santa Barbara, supra, 41 Cal.4th at p. 754.) “ ‘ “ ‘[G]ross negligence’ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind . . . .” ’ ” (Ibid., quoting Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197.) 

DISCUSSION 

A.   The first amended complaint 

The first amended complaint alleges the following: 

“Defendant negligently owned, leased, occupied, and/or controlled the property located at 32250 West Triunfo Canyon Road, Westlake Village, CA 91361. Defendant was grossly negligent in the manner in which they owned, leased, occupied, controlled, maintained, managed, leased, and/or operated the described property, including the subject tennis court where the incident involved in this case took place. Defendant showed an extreme departure from what a reasonably careful athletic center and establishment would do in the same situation. They willfully and knowingly placed a light pole within the area of tennis play which was too close to the tennis court, which they knew based on prevailing industry standards would subject tennis players, who were playing with due caution and consideration, to severe injury to players by striking the object while playing, without making it safe through padding or failing to ensure the flooring was proper. Furthermore, despite knowing this risk of severe injury to players, knowing about the prevailing standards of clear distance around a court, Defendant failed to execute caution and preventative measures so as to allow a dangerous condition to exist causing Plaintiff Richard Friedman to sustain serious injuries [on May 9, 2022].  Defendants also built, designed, and/or created the dangerous condition which was known to them and concealed said dangerous condition from Plaintiff Richard Friedman, causing Mr. Friedman to sustain serious injuries.” 

B.   The demurrer

Defendant argues that Plaintiff cannot state a claim for gross negligence unless Plaintiff alleges a “statutory basis” for the claim.  (Demurrer p. 6, citing Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856, fn. 18 (Eriksson).) 

The Supreme Court rejected this proposition in City of Santa Barbara, observing that “despite the absence of statutory authorization, California case law clearly distinguishes between the concepts of ordinary negligence and other, aggravated forms of misconduct such as gross negligence and recklessness.”  (Santa Barbara, supra, 41 Cal.4th at p. 779; see id. at p. 780 [describing decisions which, “in offhand dicta,” stated general proposition that “ ‘California does not recognize a distinct cause of action for ‘gross negligence’ independent of a statutory basis’ ”].)  Indeed, Eriksson, on which Defendant relies, cites Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 766, footnote 9, whose “offhand dicta” the Court noted in City of Santa Barbara. 

Defendant also asserts that the first amended complaint is uncertain.  Yet Defendant has not shown that it cannot understand what Plaintiff is alleging.  Instead, Defendant asserts that Plaintiff in fact “tripp[ed] [over] his own foot while chasing after a ball during a game of competitive doubles tennis” and is attempting to evade his waiver of liability.  (Demurrer p. 4.)  The Court cannot consider these alleged facts in ruling on a demurrer. 

“Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages.” (Rosecrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.)  “However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.” (Ibid.) 

The first amended complaint does not allege facts showing extreme conduct by Defendant.  With respect to gross negligence, the first amended complaint alleges only factual and legal conclusions.  Therefore, the Court sustains the demurrer with leave to amend. 

CONCLUSION 

The Court SUSTAINS Defendant Westlake Village Athletic Club, LP, dba Westlake Athletic Club’s demurrer with 30 days leave to amend. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.