Judge: Mark C. Kim, Case: 22STCV20865, Date: 2023-03-14 Tentative Ruling

Case Number: 22STCV20865    Hearing Date: March 14, 2023    Dept: S27

1.     Background Facts

Plaintiff, Oliver Dew filed this action against Defendant, Villa Redondo Care Home, Inc. for premises liability, elder abuse, general negligence, and medical malpractice.  Plaintiff alleges he sustained serious injuries when a dresser at Defendant’s facility, not properly secured to the wall, fell over on top of him.    

 

Defendant filed a demurrer and motion to strike directed at the original complaint.  On 10/17/22, prior to the hearing, Plaintiff filed his operative First Amended Complaint.  The FAC includes causes of action for premises liability, elder abuse, and general negligence. 

 

2.     Demurrer

a.     Standard on Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39 Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

 

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. Financial Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP §430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP §430.41(a)(3).)

 

  1. Meet and Confer

Defense Counsel submitted a declaration that satisfies the meet and confer requirement.  The Court will rule on the demurrer on its merits. 

 

  1. Initial Note

Any opposition to the demurrer was due on or before 3/01/23.  The Court did not receive timely opposition to the demurrer.  The Court asks Plaintiff’s attorney to ensure timely and proper filing of opposition in the future in connection with this and other cases if he wishes to prosecute the pending matter. 

 

  1. Second Cause of Action, Elder Abuse

Plaintiff filed a request for dismissal of his elder abuse cause of action on 3/01/23.  The demurrer to the elder abuse cause of action is therefore moot. 

 

  1. First and Third Causes of Action, Premises Liability and General Negligence

Defendant demurs to the first and third causes of action on the ground that the allegations therein are conclusory.  Negligence claims, however, can be pled in general terms.  See .  See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.  It is unclear what more Plaintiff could plead; he pleads that a dresser, on Defendant’s property, not secured to the wall, fell over and injured him.  At the pleading stage, this is sufficient.

 

Defendant also argues the premises liability and negligence causes of action are duplicative.  Plaintiff is permitted, at the pleading stage, to plead in the alternative. 

 

Despite the lack of opposition, the demurrer to the first and third causes of action is overruled. 

 

3.     Motion to Strike   

Defendant moves to strike the first, second, and third causes of action.  The motion is entirely redundant with the demurrer.  A motion to strike serves a separate purpose from a demurrer, which is to strike out specific false, irrelevant, or improper matter.  CCP §436.  The motion to strike is denied as moot. 

 

4.     Conclusion

Defendant’s demurrer to the second cause of action is moot; the demurrer is otherwise overruled.  Their motion to strike is denied.  Defendant is ordered to file an answer to the FAC within ten days. 

 

Defendant is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.