Judge Salvatore Sirna, Case Number: 23PSCV00742, Date: 2023-11-01 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV00742, Date: 2023-11-01 Tentative Ruling

Case Number: 23PSCV00742 Hearing Date: November 1, 2023 Dept: G

Defendant Costco Wholesale Corporation’s Demurrer to Complaint

Respondent: Plaintiff Guadalupe Triner

TENTATIVE RULING

Defendant Costco Wholesale Corporation’s Demurrer to Complaint is OVERRULED. Defendant to file its Answer in ten (10) days.

BACKGROUND

This is a premises liability action. Defendant Costco Wholesale Corporation (Costco) owns and operates a warehouse in Azusa on Foothill Boulevard. In March 2021, Plaintiff Guadalupe Triner was in the deli section of Costco’s Azusa warehouse when Triner slipped and fell.

On March 14, 2023, Triner filed a complaint against Costco, Joel Doe, and Does 1-50, alleging (1) negligence and (2) premises liability.

On August 31, 2023, Costco filed a notice of removal to federal court. On September 6, the United States District Court for the Central District of California issued an order remanding this action.

On September 28, 2023, Costco filed the present demurrer. Prior to filing on August 31, Costco’s counsel met and conferred telephonically with Triner’s counsel and was unable to reach a resolution. (Breuer Decl., ¶ 2.)

A hearing on the demurrer is set for November 1, 2023, along with a status conference re: removal to federal court on December 5.

ANALYSIS

Costco demurs to Triner’s entire Complaint on the grounds that it is uncertain and inadequately pled. For the following reasons, the court OVERRULES Costco’s demurrer.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Discussion

In this case, Costco argues Triner’s Complaint is uncertain and inadequately pled because its two causes of action for negligence and premises liability are duplicative of each other.

The court acknowledges there is a split of authority on whether a demurrer can be sustained on grounds that a cause of action is duplicitous. In Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 (Blickman Turkus), the Sixth District Court of Appeal held a demurrer could not be sustained on grounds that it is duplicative pursuant to Code of Civil Procedure section 430.10. (Id., at p. 890.) In Palm Springs Villas Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268 (Palm Springs Villas), the Fourth District Court of Appeal held the opposite, noting a duplicative cause of action is grounds upon which a demurrer may be sustained according to Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 (Rodrigues). (Palm Springs Villas, supra, 248 Cal.App.4th at p. 290.)

Code of Civil Procedure section 430.10 authorizes a party to bring a demurrer on eight different grounds, none of which explicitly include grounds that a cause of action is duplicative or superfluous. In Rodrigues, the Fourth District Court of Appeal noted the cause of action at issue merely combined all the previous causes of action and did not add anything to the complaint by way or fact or theory of recovery. (Rodrigues, supra, 87 Cal.App.3d at p. 498, 501.) But the court finds the reasoning in Blickman Turkus more persuasive. Noting the jurisprudential maxim that “superfluity does not vitiate” (Civ. Code, § 3537), the court held “[t]his is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman Turkus, supra, 162 Cal.App.4th at p. 890.)

Accordingly, because a duplicative cause of action is not grounds for demurrer, Costco’s demurrer is OVERRULED.

CONCLUSION

Based on the foregoing, Costco’s demurrer to Triner’s Complaint is OVERRULED. Defendant to file its Answer in ten (10) days.