Judge Serena R. Murillo, Case 22STCV08052 2022-10-05 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV08052, Date: 2022-10-05 Tentative Ruling

Case Number: 22STCV08052 Hearing Date: October 5, 2022 Dept: 29

Maria Angela De Los Angeles Perez v. Gonzalez Management Company

Wednesday, October 5, 2022

Demurrer to Complaint filed by Defendant Santa Isabel Enterprises, Inc. dba Vallarta Supermarkets #24 (erroneously sued as Gonzalez Management Company Inc.), and Javier Romano

TENTATIVE

Defendants Santa Isabel Enterprises, Inc. dba Vallarta Supermarkets #24 (erroneously sued as Gonzalez Management Company Inc.), and Javier Romano’s demurrer is OVERRULED.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, 147 Cal.App.4th at 747.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Michael Peterson which satisfies the meet and confer requirements. (CCP section 430.41(a).)

Discussion

Defendant argues that the complaint fails to state sufficient facts to constitute a cause of action because it does not state the required facts.

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)

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 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civil Code § 1714(a)).) In order to impose liability on a property owner for a dangerous condition, the owner must have either actual or constructive knowledge of the dangerous condition or have been able to discover the condition by the exercise of ordinary care. (Ortega, supra, 26 Cal.4th at 1206.)

The complaint alleges that Defendants maintained, controlled, managed, operated, supervised and/or owned the property in which Plaintiff sustained injuries. Defendants negligently failed to warn its public, including said Plaintiff, of the unreasonable risk of harm while Plaintiff was lawfully in the Defendants premises. Defendants and each of them negligently failed to guard against the unreasonable risks of harm to the public, including Plaintiff. It also alleges that Defendants owned property where a dangerous condition existed.

The Court finds that these allegations are ultimate facts and are thus sufficient to plead general negligence and premises liability against Defendants. While the complaint does not plead the exact dangerous condition that caused her to sustain injuries, any further clarifications as to the allegations and claims can be resolved during discovery.

Defendant also argues that Plaintiff’s second cause of action for violation of Civil Code section 846 is not actionable.

However, this is not a separate cause of action, and it is only a count under the cause of action for premises liability. A demurrer does not lie to only a part of a cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) As such, a demurrer is not the proper vehicle to assert this argument.

Conclusion

Based on the foregoing, Defendants’ demurrer is OVERRULED.

Moving party is ordered to give notice.