Judge Margaret L. Oldendorf, Case Number: 23AHCV00776, Date: 2023-08-31 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 23AHCV00776, Date: 2023-08-31 Tentative Ruling

This is a slip and fall case. Plaintiff Enna Bertulia Gomez alleges that while she was on the premises of the Costco store located on Commonwealth in Alhambra, she slipped and fell as a result of a dangerous condition. The complaint names five defendants, each of whom is alleged to have negligently owned, controlled, maintained, managed, and operated the store where Gomez was injured.

Defendant Costco Wholesale Corporation filed an answer, as did Defendants The Price Reit, Inc. and KCRX Price Reit, LLC. Defendants Costco Wholesale Membership and Daniel Herrera demur to the complaint. For the reasons that follow, their demurrer is overruled.

Code Civ. Proc. §430.10(d) provides for a demurrer where there is a defect or misjoinder of parties. Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.

The form pleading alleges that Defendants Costco Wholesale Corporation, Costco Wholesale Membership, The Price Reit, Inc., KRCX Price Reit, Inc., and Daniel Herrera own, lease, operate, occupy, manage, maintain, and/or otherwise control the premises at 2207 W. Commonwealth, Alhambra. Plaintiff alleges that all defendants owed her a duty to prevent, eliminate, and rectify any dangerous condition, to inspect the premises, and to warn of any dangerous conditions. There are allegations regarding choices Defendants made that caused the floor to be unreasonably slippery:

“For these reasons, Defendants breached their duty to use reasonable care and Defendants were negligent in the use and/or maintenance of the Premises so as to cause and/or allow the presence of a dangerously slippery floor and/or the presence of a dangerous liquid/dangerously slippery substance on their floor. While Plaintiff was walking through the Premises, Plaintiff slipped and fell as a result of this dangerous condition. The dangerous condition was known and/or reasonably should have been known to Defendants-and also it was caused by Defendants.”

Gomez alleges that she suffered bodily injury as a result of the slip and fall, including but not limited to her tailbone, back, and neck.

Costco Wholesale Membership argues that it is an improper party because it does not own, operate, maintain, or control the premises. This argument fails because, for purposes of a demurrer, the allegations of a complaint are assumed to be true. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.

The Declaration of Leigh Ann Ruijters offered in support of the demurrer is improper and cannot be considered. A demurrer challenges defects appearing on the face of the complaint or in judicially noticeable material. It cannot be based on extrinsic evidence. “Speaking demurrers” are not permitted. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), §7.8. The demurrer is thus overruled as to Costco Wholesale.

Herrera argues that the complaint does not contain any factual allegations against him. This argument fails because the pleading alleges that he, along with the other defendants all own, operate, manage, and/or control the Alhambra Costco where Gomez slipped and fell. The demurrer is therefore also overruled as to Herrera.[1]

The demurrer of Costco Wholesale Membership and Daniel Herrera is overruled. Moving defendants are granted 10 days to answer.

[1] Plaintiff did recently file a Doe Amendment, naming another individual, Damond Chapman, as Doe 1. The Court encourages the parties to voluntarily exchange information, and to meet and confer with each other as to the identity of the proper Defendants in this case.