Judge: Melvin D. Sandvig, Case: 23CHCV01218, Date: 2023-11-02 Tentative Ruling
Case Number: 23CHCV01218 Hearing Date: November 2, 2023 Dept: F47
Dept. F47
Date: 11/2/23
Case #23CHCV01218
DEMURRER TO THE
ORIGINAL COMPLAINT
Demurrer was filed on 7/7/23.
MOVING PARTY: Defendant Pacific Pharmacy Group
RESPONDING PARTY: Plaintiff Jacques Wylan
NOTICE: ok
Demurrer is to the entire complaint:
1. Negligence
2. Strict Liability
RULING: The demurrer is sustained with 30 days
leave to amend.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of injuries Plaintiff Jacques
Wylan (Plaintiff) allegedly suffered when a bolt in the JusGo knee scooter (the
Scooter) he rented from Defendant Pacific Pharmacy Group (Pacific) failed
causing Plaintiff fall with his weight landing on his left knee. (Complaint ¶¶4, 13, 14).
On 4/26/23, Plaintiff filed this action against Pacific
and others for: (1) Negligence and (2) Strict Liability. After meet and confer efforts failed to
resolve issues Pacific had with Plaintiff’s claims against it in the complaint,
Pacific filed and served the instant demurrer to the entire complaint on the
ground that the complaint fails to allege sufficient facts to constitute each
of the causes of action therein. CCP
430.10(e). Plaintiff has not opposed or
otherwise responded to the demurrer.
ANALYSIS
In ruling on a demurrer, the Court must treat as true all
material facts properly pleaded but not contentions, deductions or conclusions
of fact or law. Darr (1967) 67
C2d 695, 713. On demurrer, facts in
exhibits attached to or referenced in the complaint prevail over conflicting
facts in the pleading. Barnett
(2001) 90 CA4th 500, 505; McBride (2018) 18 CA5th 1160, 1173.
Pacific claims that the complaint refers to a “written
agreement” whereby Plaintiff rented the Scooter
from Pacific and then states that a copy of the agreement is included as an
exhibit to Pacific’s Request for Judicial Notice because it was not attached to
the complaint. (See Demurrer, p.3:10-12). However, the complaint actually alleges that
“Plaintiff rented the Scooter from VALENCIA pursuant to a written
agreement.” (Complaint ¶13). Pacific’s Request for Judicial Notice fails
as it does not set forth any statutory or other authority for the Court to take
judicial notice of a private agreement between parties. Additionally, the exhibit attached to the
Request for Judicial Notice consists of a “Delivery Ticket” between Plaintiff
and Valencia Pharmacy and a “Pick up/Exchange Ticket” between the same
parties. Even if there is a basis for
the Court to take judicial notice of such documents, it cannot be determined
from the allegations in the complaint and the documents in the request that
they are the “written agreement” referenced complaint. As such, Pacific’s Request for Judicial
Notice is denied.
The elements of a negligence cause of action are: (1)
duty owed by defendant to plaintiff, (2) defendant’s breach of that duty and
(3) harm to plaintiff caused by the breach.
Kesner (2016) 1 C5th 1132, 1142.
Contrary to Pacific’s assertion, the Court does not find
that the specific allegations in the complaint regarding other parties
designing, manufacturing and/or marketing the Scooter contradict the general allegations regarding
Pacific’s purported liability in this action.
(See Complaint ¶¶9, 11, 12).
Plaintiff has alleged that the defendants, including Pacific,
“engaged in the business of manufacturing, fabricating, designing,
assembling, distributing, retailing, buying, selling
inspecting, testing, analyzing, servicing, repairing, marketing, warranting,
maintaining, altering, controlling,
modifying, managing, leasing and/or advertising the JUSGO Knee Scooter product
(“Scooter”), and each and every component part thereof, for use in
interstate commerce and in the State of California.”
(Complaint ¶8).
Based on the foregoing, the Court finds that Plaintiff
has alleged sufficient facts to establish that Pacific owed Plaintiff a duty of
care. (See Complaint ¶¶8,
26). However, Plaintiff has not pled
facts to show how Pacific allegedly breached that duty and/or how such breach caused
Plaintiff’s alleged harm (i.e., injuries and monetary damages related
thereto). (See Complaint
¶28). With regard to Pacific’s alleged
breach of duty, the complaint alleges that after Plaintiff’s fall from the
Scooter:
“Plaintiff's wife returned the
Scooter to VALENCIA on or about March 30, 2022.
Plaintiff completed a DMEPOS Medicare Beneficiary Complaint Form for
VALENCIA. The VALENCIA representative
that took the Complaint told Plaintiff that they would get back to him within
ten days with an evaluation. No one from
VALENCIA has gotten back to Plaintiff regarding his Medicare Complaint or the
Scooter.”
(Complaint ¶¶16, 27).
Pacific and/or Valencia’s failure to get back to
Plaintiff about his complaint made after the alleged incident did not
cause the injuries and damages claimed in the complaint. Plaintiff must allege facts showing how
Pacific breached an alleged duty owed to Plaintiff as a retailer, seller,
inspector, tester, servicer, repairer, maintainer, controller, lessor, etc. of
the Scooter and how such breach caused Plaintiff’s claimed harm. (See Complaint ¶¶8, 26, 28).
Similarly, Plaintiff has failed to allege sufficient
facts to show that the Scooter was defective so as to impose strict liability
on Pacific as part of the marketing chain for the Scooter. See Peterson (1995) 10 C4th
1185, 1188; Taylor (2009) 171 CA4th 564, 575. Plaintiff merely alleges that the Scooter was
capable of causing injuries and it did cause him injuries. (Complaint ¶30). Plaintiff has failed to allege sufficient
facts to support the allegation that the Scooter was defective. (Complaint ¶¶18, 20, 31, 33).
Due to the liberal
policy of allowing leave to amend and because this is only the original
complaint, Plaintiff is given the opportunity to try to cure the defects in the
pleading.
CONCLUSION
The demurrer is sustained with 30 days leave to
amend.