Judge: Lynne M. Hobbs, Case: 23STCV03474, Date: 2023-11-09 Tentative Ruling

Case Number: 23STCV03474    Hearing Date: December 26, 2023    Dept: 30

JOSE DIAZ-ROCHA vs BROWN SURDALYER, et al.

TENTATIVE

Defendant’s demurrer is SUSTAINED with 20 days leave to amend.  Moving party to give notice.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) 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.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

A special demurrer for uncertainty is appropriate where the pleading is so poorly written that the defendant cannot reasonably respond because it cannot tell what claims need to be admitted or denied.¿ (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Discussion

I. Timeliness

Plaintiff argues the demurrer is untimely, and that Defendant failed to file proof of service of the demurrer.

The court has discretion to consider an untimely demurrer as long as the substantial rights of the parties are not affected. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) The appearance of a party at the hearing of a motion and his or her opposition to the motion on the merits is a waiver of any procedural defects or irregularities in a motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

As Plaintiff filed an opposition on the merits, Plaintiff has waived any procedural defects.

II. Meet and Confer

Before filing a demurrer, demurring party is also required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code Civ. Proc., § 430.41.)

Plaintiff also argues Defendant failed to meet and confer. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (See Code Civ. Proc., § 430.41(a)(4).) Thus, the Court turns to the merits.

III. Merits

Defendant demurs to the complaint, arguing that the causes of action for premises liability and negligence fail to state sufficient facts to constitute causes of action and are uncertain. The Court agrees.

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)

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 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civil Code § 1714(a)).) In order to impose liability on a property owner for a dangerous condition, the owner must have either actual or constructive knowledge of the dangerous condition or have been able to discover the condition by the exercise of ordinary care. (Ortega, supra, 26 Cal.4th at 1206.)

The complaint alleges Defendants and each of them negligently and carelessly owned, occupied, maintained, inspected, supervised, operated, controlled, managed, cleaned, used, repaired, directed and superintended the premises so as to cause Plaintiff to trip and fall when he came into contact with a dangerous condition on the subject property.

However, the dangerous condition is not alleged. While negligence may be alleged in general terms, there are limits to the generality, and Plaintiff must indicate the act or omission that was negligently performed and what was the dangerous condition. Plaintiff’s allegations are vague and ambiguous and they fail to provide Defendant with sufficient information to place Defendant on proper notice as to the nature of Plaintiff’s complaint. Thus, the demurrer is SUSTAINED with 20 days leave to amend.