Judge: Michael E. Whitaker, Case: 22STCV08173, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV08173    Hearing Date: March 15, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Michael McCarthy (Plaintiff) filed a Complaint based on injuries he alleges he sustained in a slip and fall incident at the Westfield Topanga Mall.  On November 18, 2022, Plaintiff amended the Complaint to add Defendant Universal Protection, LP, dba Allied Security Services (Allied) as Doe 2.   

Allied demurs to Plaintiff’s Complaint which alleges negligence and premises liability causes of action against Allied.  Plaintiff has filed a statement of non-opposition.  Allied replies.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

A.    FAILURE TO CONSTITUTE A CAUSE OF ACTION

            Allied demurs to the first and second causes of action for general negligence and premises liability.  Allied argues Plaintiff only advances conclusions of law without facts when alleging that Allied had a duty to Plaintiff, breach said duty, and caused Plaintiff’s injuries. Allied concludes that Plaintiff thus fails to state any facts to support the two causes of action against it.

The basic elements of an actionable negligence claim are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; (3) and harm to the plaintiff caused by the breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.). The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to state a claim for premises liability, Plaintiff must allege: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

The first cause of action for general negligence alleges the following:

Defendants negligently, carelessly, and recklessly maintained, failed to inspect, and operated their place of business and/or common areas as to cause Plaintiff to slip and fall. As a result, Plaintiff sustained physical injuries as alleged herein.

(Complaint, p. 4.)  The second cause of action for premises liability alleges the following:

Plaintiff was walking through the Westfield Topanga & The Village, located at 6600 CA-27 #2018, Canoga Park, CA 91303, wallked by the Zumiez Store (#2018) when he slipped on a wet and/or slippery substance. As a result of the slip and fall, Plaintiff suffered bodily injuries to his legs, back, neck, and buttocks.

(Complaint, p. 5.)  Based upon the November 18, 2022 Doe Amendment, as well as the checking off of the applicable boxes in the Judicial Council Pleading Form, the Complaint further alleges that Allied negligently owned, maintained, managed, and operated the described premises, and were the agents and employees of the other defendants and acted within the scope of the agency.  (See Ibid.)

The Court finds Plaintiff has sufficiently pled the ultimate facts necessary to state causes of action for general negligence and premises liability.  Ultimate facts are those “constituting the cause of action” or those upon which liability depends, e.g., duty of care, breach of the duty and causation (damages).  (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form a part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 [at pleading stage, plaintiff need not specify which of defendant’s employees committed negligent acts or omissions].) [1]

Allied cites to Moore v. Regents of University of California (1990) 51 Cal.3d 120, in support of its proposition that an agency relationship needs to be alleged with more factual particularity than simply stating that an agency relationship exists.  However, Moore did not actually reach the issue of whether the subject secondary-liability allegations were sufficiently pled.  Further, the court in Moore was determining the sufficiency of allegations for distinct causes of action then the claims here for negligence and premises liability.  Accordingly, the Court does not find Moore to be controlling.

Therefore, for pleading purposes, the Court finds Plaintiff’s allegations are sufficient to constitute causes of action for general negligence and premises liability.  

B.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the

responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Here, Allied also demurs to the first and second causes of action for uncertainty.  Specifically, Allied argues Plaintiff’s complaint is devoid of any facts against Allied specifically satisfying the elements of the negligence and premises liability causes of action.  Here, as is discussed above, Plaintiff relies on a Judicial Council Form Complaint designed to lay out the ultimate facts of a cause of action in a clear and concise fashion.  Further Plaintiff is entitled to plead in the alternative. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)  Accordingly, the Court finds Plaintiff’s first and second causes of action for negligence and premises liability do not fail for uncertainty.

CONCLUSION AND ORDER

Therefore, the Court overrules Allied’s demurrer to the Complaint and orders Allied to file and serve an Answer to the complaint within 20 days of the hearing on the demurrer.

Allied shall provide notice of the Court’s ruling and file a proof of service of such.