Judge: Michael E. Whitaker, Case: 22STCV14709, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV14709    Hearing Date: December 7, 2022    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

MOTIONS

Plaintiff Majisha Berry (Plaintiff) sued Defendants Oscar Serrano dba Blessed Smog Check & Auto Repair and Orlando J Castano Revocable Trust (Defendants) based on injuries Plaintiff allegedly sustained due to Defendants’ failure to provide safe flooring at the subject premises.  Defendants demur to the first cause of action (Negligence) asserted in the Plaintiff’s Complaint.  Defendants also move to strike portions of the Complaint as irrelevant.  Plaintiff has not filed an opposition either to the demurrer or the motion.

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.)

Defendants argue that Plaintiff’s cause of action for negligence fails to allege facts sufficient to constitute a cause of action against Defendants.  Specifically, Defendants assert that Plaintiff’s cause of action for negligence is conclusory, and lacking material facts in support of the allegations made. 

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that 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.)  Further, to prevail on a claim for premises liability, a plaintiff must prove: (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.)           

As set forth in Paragraph 9 of the Complaint, Plaintiff alleges “On or about 5-19-20, at the subject location, the defendants, and each of them, so negligently, carelessly, and recklessly owned, operated, maintained, supervised, cleaned and managed said premises, so as to cause plaintiff substantial injuries. More specifically, failing to provide safe flooring in the subject location as to create a dangerous and hazardous condition, which Defendants knew, or in the exercise of reasonable care should have known existed sufficient time prior to incident to have warned or cautioned Plaintiff and/or to have corrected and/or remedied such condition, which the defendants carelessly and negligently failed and reused to do, proximately causing those injuries and damages to Plaintiff as hereinafter described.”  (Complaint, ¶ 9.) 

Further, Plaintiff alleges in Paragraph 10 of the Complaint “That as a direct and proximate result of the acts and omissions of the defendants, and each of them, plaintiff has received severe injuries to her body and shock and injuries to her nervous system, all of which caused Plaintiff severe pain and discomfort and plaintiff is informed and believes and based upon such information and belief alleges that Plaintiff will in the future suffer severe pain and discomfort, all to Plaintiff’s general damages in a sum according to proof at the time of trial.”  (Complaint, ¶ 10; see also Complaint, ¶ 11 [Plaintiff’s further allegations of injuries and damages].) 

For pleading purposes, the Court finds Plaintiff’s Complaint alleges sufficient ultimate facts to constitute negligence cause of action.  Ultimate facts are those “constituting the cause of action” or those upon which liability depends. (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].) 

The Court therefore overrules the demurrer for failure to allege facts sufficient to constitute a cause of action.

1. MOTION TO STRIKE

            Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

            Here, Defendants seek to strike paragraphs 2 and 3 of Plaintiff’s Complaint arguing that such paragraphs are “[i]mmaterial as there are no plaintiffs who are either doctors, medical professionals or manufacturers of some unknown product, and there are absolutely no claims for either medical malpractice, medical negligence and/ or product liability.”  (Motion to Strike, p. 2.) 

            Based upon the Court’s review of paragraphs 2 and 3, the Court notes that the allegations are not asserted against Defendants.  Instead, the allegations are asserted against “defendants, DOES 20 through 30” and “defendants, DOES 31 through 40.”  As such, the Court finds that Defendants have no standing to assert that the allegations set forth in paragraphs 2 and 3 are immaterial and should be stricken from the Complaint. [1]  

CONCLUSION AND ORDER

Therefore, the Court overrules Defendants’ demurrer to Plaintiff’s Complaint and denies Defendants’ motion to strike portions of the Complaint.  Defendants shall file and serve an answer to the Complaint on or before December 30, 2022. 

The Clerk of the Court shall provide notice of the Court’s ruling.