Judge Sarah J. Heidel, Case Number: 22BBCV01078, Date: 2024-04-12 Tentative Ruling

Judge: Sarah J. Heidel, Case: 22BBCV01078, Date: 2024-04-12 Tentative Ruling

Case Number: 22BBCV01078 Hearing Date: April 12, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

LINA ISSA, Plaintiff, vs. COSTCO WHOLESALE CORPORATION, et al., Defendants.
Case No.: 22BBCV01078
Hearing Date: April 12, 2024
Time: 8:30 a.m.

[TENTATIVE] ORDER RE: DEMURRER TO COMPLAINT

MOVING PARTY: Defendant John Grove

RESPONDING PARTY: Plaintiff Lina Issa

Demurrer to Complaint

BACKGROUND

On November 28, 2022, Plaintiff Lina Issa (“Plaintiff”) filed a Complaint against Defendants Costco Wholesale Corporation (“Costco”) and DOES 1 to 25, alleging causes of action for general negligence and premises liability. The complaint was later amended to substitute Defendant John Grove (“Grove”) for Doe 1. Plaintiff alleges that she tripped over a parking block outside a Costco store in Burbank.

On December 15, 2023, Defendant Grove filed a demurrer to the first and second causes of action in the Complaint. On March 29, 2024, Plaintiff filed an opposition to the demurrer, to which Defendant Grove replied on April 8, 2024. The court has reviewed the moving papers, opposition, and reply papers filed in connection with the demurrer.

LEGAL STANDARD

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) In ruling on a demurrer, “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

DISCUSSION

A. Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), the parties were required to meet and confer in person, by telephone, or by video conference before bringing the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) An insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Counsel for Defendant Grove, Daniel J. McKenzie (“McKenzie”), declares that on November 30, 2023, he spoke with Plaintiff’s counsel via telephone and the parties discussed

potential amendment. (McKenzie Decl., ¶ 10.) The parties did not reach an agreement resolving the objections raised in the demurrer. (McKenzie Decl., ¶ 10.)

The Court finds that the meet and confer requirement has been met.

B. The Complaint

Plaintiff alleges the following pursuant to her first cause of action for negligence:

On November 25, 2020, Plaintiff tripped and fell over a black-colored parking block (the “Subject Parking Block”) near the entrance/exit area of Defendant Costco’s retail establishment located at 1050 W. Burbank Blvd., Burbank (the “Subject Premises”). (Complaint at p. 4.) Plaintiff further alleges that the black-colored parking block located at the Subject Premises was owned, leased, occupied, and/or controlled by Defendant Costco and that Defendant Costco had a duty to maintain the parking block for its customers. (Id.) Plaintiff alleges that the parking block was an unreasonably unsafe tripping hazard to customers because its black coloring camouflaged it with the black asphalt of the parking lot and that color stripping had been allowed to peel away such that, at the time of the incident, there was little to no striping left. (Id.)

Plaintiff alleges that Defendant Costco had actual and/or constructive notice of the dangerous condition and failed to repair and/or otherwise warn the public of the hidden dangers related to the parking block and that it had ample time to do so. (Id.) Plaintiff alleges that Defendant Costco failed to properly train and/or supervise employees to properly inspect, identify, and/or remedy dangerous conditions on the Subject Premises, including of the Subject Parking Block. (Id.) Plaintiff alleges that due to the negligence of Defendant Costco, she tripped, fell, and sustained serious orthopedic injuries requiring ongoing medical care. (Id.) She claims noneconomic and economic damages related to her physical injuries including pain and suffering, emotional distress, and economic damages. (Id.)

C. Uncertainty

Defendant Grove’s argues that the Complaint is uncertain. “A special demurrer should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.) “A demurrer for uncertainty

will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party.” (Ibid., internal quotations omitted.)

The Complaint alleges that Does 1-25 are the agents or employees of the other named defendants and acted without the scope of that agency or employment. (Complaint, ¶ 6.) Both the first and second causes of action are asserted against Does 1 to 25. (Complaint at pp. 4-5.) The Complaint was amended to substitute Defendant Grove for Doe 1. The Court finds that the Complaint is not so unclear that Defendant Grove is not apprised of the issues raised.

The Court therefore OVERRULES the demurrer of Defendant Grove on the grounds of uncertainty.

D. Sufficiency of the First Cause of Action for Negligence

Defendant Grove contends that the first cause of action for negligence is insufficiently alleged.

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

The complaint alleges that Defendant Costco had a duty to maintain the subject premises

but is silent as to Defendant Grove’s role in the alleged incident. For example, although in paragraph 6, the complaint states that the Doe Defendants (one of which is now identified as Defendant Grove) was an agent or employee of other defendants and acted within the scope of their agency or employment, the complaint contains no facts as to Defendant Grove’s position at Costco, involvement in the maintenance of the parking block or other duties at Costco, Costco’s supervision of control over Defendant Grove’s performance of job duties, or Defendant Grove’s involvement in the alleged accident.

Plaintiff argues that Defendant Costco can be held vicariously liable for the actions of Defendant Grove. “[U]nder the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of employment.” (John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 574.) This argument is inapposite because it is not Defendant Costco that is challenging the sufficiency of the Complaint.

The demurrer of Defendant Grove to the first cause of action for negligence is SUSTAINED.

E. Sufficiency of the Second Cause of Action for Premises Liability

Defendant Grove asserts that the second cause of action for premises liability is duplicative of the first cause of action and also fails to state facts sufficient to constitute a cause of action.

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) A demurrer to a cause of action is properly sustained where such cause of action incorporates the preceding causes of action “and thus adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.)

Here, the Court finds that the second cause of action is duplicative to the first cause of action as it adds nothing to the Complaint by way of fact or theory of recovery. (Complaint at pp. 4-5.) Additionally, Plaintiff has failed to allege the existence of duty and breach pursuant to the second cause of action. (Complaint at p. 5.)

The Court therefore SUSTAINS the demurrer of Defendant Grove to the second cause of action for premises liability.

F. Leave to Amend

Plaintiff argues that following Defendant Grove’s December 15, 2023 deposition, she obtained additional facts to further support her causes of action against him. (Opp’n at p. 8:9-10.) The Court will allow Plaintiff an opportunity to amend the Complaint.

Based on the foregoing, the demurrer of Defendant Grove to the first and second causes of action in the Complaint is SUSTAINED with 20 days leave to amend.