Judge: Michael E. Whitaker, Case: 22STCV29247, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCV29247    Hearing Date: December 13, 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

MOTION

Plaintiff Robert Mendoza (Plaintiff) sued Defendants City of South Gate and Armor Cast Products Company, Inc. (Defendants) based on a trip and fall incident.  Defendant Armor Cast Products Company, Inc. (Demurring Defendant) demurs to the second cause of action for negligence in Plaintiff’s complaint.  Plaintiff has not filed an opposition to the demurrer.

ANALYSIS

“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.) 

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.)  Moreover, 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.) 

            First, Demurring Defendant argues that Plaintiff’s second cause of action is a mislabeled attempt to bring a premises liability action against Demurring Defendant. 

Where the demurrer is based on the pleading not stating facts sufficient to constitute a cause of action, the rule is that if, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. In other words, plaintiff need only plead facts showing that he may be entitled to some relief. Furthermore, we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.

(New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714 [cleaned up].)  Here, Plaintiff alleges in pertinent part against Demurring Defendant:

• At all times mentioned herein, the subject area was a public sidewalk within the 24 City of South Gate, located at, near, or around 5640 Borwick Avenue, South Gate, California 90280 (hereinafter, "SUBJECT AREA").

• PLAINTIFF is informed and believes and thereupon alleges that on or about November 16, 2021, PLAINTIFF was lawfully upon the SUBJECT AREA, and that at the time and place of the subject incident, on the grounds of the SUBJECT AREA there was a utility access hole in the ground which was exposed and improperly and/or not covered with a broken covering.

• Plaintiff is informed and believes and thereupon alleges that Defendant ARMOR CAST and DOES 51 — 100, inclusive, and each of them, owed Plaintiff a duty of care to maintain their property, and to keep the property, the ground, and the SUBJECT AREA free from encumbrances, faults, dangers, and other hazards for all pedestrians and travelers upon the SUBJECT AREA.

• On June 21, 2021, Defendant ARMOR CAST and DOES 51 — 100, inclusive, and each of them, breached their duty of care to Plaintiff.

• Plaintiff is informed and believes and thereupon alleges that at said time and place, Defendant ARMOR CAST and DOES 51 — 100, inclusive, and each of them, so carelessly and without regard for pedestrian safety, owned, maintained, controlled, and/or operated thei1 property as to directly, proximately and legally cause the subject accident involving Plaintiff, thereby inflicting severe injuries to Plaintiffs body and mind.

(Complaint, ¶¶ 8-9, 24-26.)  Accordingly, based on the allegations, the Court finds Plaintiff has pled a cognizable claim against Demurring Defendant, and an improper labeling of the claim does not defeat it at the pleading stage.

Second, Demurring Defendant argues that because Plaintiff alleges he tripped and fell on a public sidewalk, he is precluded from bringing a premises liability cause of action against Demurring Defendant.  Generally, Plaintiff is entitled to plead claims in the alternative. When a pleader is in doubt about what actually occurred or what can be established by the evidence, he or she may plead in the alternative and make inconsistent factual allegations. (Mendoza v. Rast Produce, Inc. (2006) 140 Cal.App.4th 1395, 1402.)

Finally, Demurring Defendant asserts that the second cause of action is uncertain and ambiguous as to Demurring Defendant, in particular regarding how Demurring Defendant breached an applicable duty owed to Plaintiff.  

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.)

Notwithstanding, for pleading purposes, the Court finds Plaintiff’s complaint alleges sufficient ultimate facts to constitute a negligence cause of action.  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].)  What Demurring Defendant seeks to be alleged in the complaint are evidentiary facts which are unnecessary at the pleading stage and can be sought through the course of discovery.

CONCLUSION AND ORDER

Therefore, the Court overrules Demurring Defendant’s demurrer to the second cause of action for negligence in the Complaint, and orders Demurring Defendant to file and serve an answer to the Complaint on or before December 30, 2022.

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