Judge: Melvin D. Sandvig, Case: 23CHCV01252, Date: 2023-09-27 Tentative Ruling

Case Number: 23CHCV01252    Hearing Date: September 27, 2023    Dept: F47

Dept. F47

Date: 9/27/23

Case #23CHCV01252

 

DEMURRER TO THE ORIGINAL COMPLAINT

 

Demurrer filed on 7/12/23.

 

MOVING PARTY: Defendant BBI Capital LLC

RESPONDING PARTY: Plaintiff Juan Francisco Rodriguez Cortes

NOTICE: ok

 

Demurrer is to the 2nd and 3rd causes of action:

            1.  Motor Vehicle Negligence

            2.  General Negligence

            3.  Premises Liability

            4.  Dangerous Condition of Public Property

 

RULING: The demurrer is overruled.  Answer is due within 20 days. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of a motor vehicle accident that occurred on 9/30/22 wherein Plaintiff Juan Francisco Rodriguez Cortes (Plaintiff) was struck by a motor vehicle driven by Defendant Jose Luis Gomez Ramirez (Ramirez).  (Complaint ¶16).  Plaintiff alleges that Ramirez drove a vehicle off the road and struck Plaintiff at the intersection of Laurel Canyon Boulevard and Mercer Street in Los Angeles.  Id.  Plaintiff alleges that on or before the accident Defendants Numero Uno, BBI Capital LLC (BBI), Felipe Camacho Lopez and Does 1-100 owned and/or controlled the land and/or were managing, controlling, and/or operating a food truck(s), food cart(s), and/or outdoor cooking equipment (the Street Food Setup) on the land and area where the accident occurred.  (Complaint ¶27). 

 

Plaintiff also alleges that the foregoing defendants “had a duty of reasonable and ordinary care to maintain, manage, control and/or operate their business operations in a safe manner by preventing reasonably foreseeable dangers presented to their customers/patrons; and to inspect the Premises and to remove dangerous conditions at the  Premises that impede, prevent, limited, and/or block sight lines, visibility, and/or the ability of  motorists and pedestrians to avoid each other in the Street Food Setup area as they navigate the   approximate location where the Crash occurred.”  (Complaint ¶28; See also Complaint ¶36).  Plaintiff contends that these defendants, including BBI, breached such “duties by inviting customers/patrons, such as Plaintiff, to stand in and around the Premises  while waiting for food at the Street Food Setup. Defendants NUMERO UNO; BBI; FELIPE;  AND DOES 1 TO 100 knew, or reasonably should have known, that a motor vehicle, such as the  Subject Vehicle operated by Defendant Driver JOSE, was likely to strike one their  customers/patrons. Defendants NUMERO UNO; BBI; FELIPE; AND DOES 1 TO 100 took no  precautions to protect their customers/patrons, such as Plaintiff, from this known and likely risk.” (emphasis added) (Complaint ¶30; See also Complaint ¶¶37-38).  Further, Plaintiff alleges that the foregoing breaches caused the accident and Plaintiff’s resulting injuries.  (Complaint ¶¶32-34, 39-41).   

 

Based on the foregoing, on 4/28/23, Plaintiff filed this action for: (1) Motor Vehicle Negligence; (2) General Negligence; (3) Premises Liability; and (4) Dangerous Condition of Public Property.  After meet and confer efforts failed to resolve the issues BBI had with the complaint, on 7/12/23, BBI filed and served the instant demurrer to the 2nd cause of action for General Negligence and the 3rd cause of action for Premises Liability (the only causes of action alleged against BBI) on the ground that they fail to allege sufficient facts to constitute a cause of action against BBI.  (See Zadeh Decl.); CCP 430.10(e).  Plaintiff has opposed the demurrer and BBI has filed a reply to the opposition. 

 

ANALYSIS

 

A demurrer for failure to state a cause of action, such as the instant demurrer, is referred to as a general demurrer.  (See Demurrer, p.2:6-7, p.3:6-13; Demurrer Ps&As, p.1:11-13, p.1:25-28, p.2:17-18; Reply, p.2:14-15); McKenney (2008) 167 CA4th 72, 77; CCP 430.10(e).  To survive a general demurrer, a plaintiff need only allege sufficient facts to state a cause of action; each evidentiary fact that might ultimately form part of the plaintiff’s proof need not be alleged.  C.A. (2012) 53 C4th 861, 872.  Any valid cause of action overcomes a general demurrer.  Quelimane Co., Inc. (1998) 19 C4th 26, 38-39; Sheehan (2009) 45 C4th 992, 998.

 

The elements of a negligence cause of action are: (1) a legal duty, (2) breach of that duty, (3) causation and (4) damages/injury.  Berkley (2007) 152 CA4th 518, 526.  Premises liability is a type of negligence whereby the owner/occupier of premises has a duty to exercise ordinary care in the management of such premises to avoid exposing persons to an unreasonable risk of harm.  See Brooks (1989) 215 CA3d 1611, 1619.  The failure to meet such a duty constitutes negligence.  Id.    

 

Generally, California is a notice pleading state, meaning a complaint will be upheld if it provides the defendant with “notice of the issues sufficient to enable preparation of a defense.”  Doe (2007) 42 C4th 531, 549-550.  A plaintiff only needs to plead such facts as necessary “to acquaint a defendant with the nature, source and extent of plaintiff’s claims.  Id.; Prue (2015) 242 CA4th 1367, 1376; C.A. (2012) 53 C4th 861, 872.  Ordinarily, negligence may be alleged in general terms, without stating the acts constituting negligence or detailing the particular manner in which plaintiff's injury occurred.  Berkley, supra at 527.  However, a bare allegation that “defendant's negligence caused plaintiff injury” is not sufficient.  Id.  Instead, a plaintiff must allege the acts or omissions of the defendant that plaintiff claims constitute the negligence.  Id.  

 

The Court finds that Plaintiff has alleged sufficient facts to put BBI on notice of the basis for Plaintiff’s negligence-based claims against it.  The complaint contains the necessary facts to support a finding that BBI owed Plaintiff a duty (Complaint ¶¶27-29, 36), BBI breached that duty (Complaint ¶¶30-32, 34), causation (Complaint ¶¶33, 40) and resulting damage/injury (Complaint ¶¶34, 39).  BBI can obtain any additional information necessary to clarify the claims through the discovery process. 

 

While the general negligence and premises liability claims have the same basic elements, the claims are not necessarily identical (i.e., a negligence claim is broader).  BBI has failed to establish at the pleading stage that the claims are redundant and Plaintiff cannot plead them separately.

 

CONCLUSION

 

The demurrer is overruled.